Chief Justice Warren E. Burger: Atlantic Coast Line Railroad Company against Brotherhood of Locomotive Engineers, and pick up where we left off last evening.o

Mr. Dennis G. Lyons: Mr. Chief Justice, may it please the Court.

Yesterday afternoon, we were to the point where we were discussing the -- what we take to be the principle contention of the respondents here and that is that the April 26, 1967 order of the Federal District Court and that was the order that denied the Atlantic Coast Line a preliminary injunction that that order was being protected or effectuated by the subsequent injunction, the 1969 injunction against enforcement of the May 1967 order of the state Court and that on that basis, they contend there is an exception here from Section 2283.

Our basic answer to that preposition is that the Federal District Court never purported to pass upon the availability of state rights or state remedies to the Atlantic Coast Line.

His decree amounted to a denial of the injunction, which was sought solely under federal law.

Their argument which was made for the first time two years later that the state injunction of May 1967 contravened the federal denial of an injunction is we submit simply a setting up of the federal law defense based on this Court’s subsequent decision in Jacksonville Terminal against the injunction in the state court proceedings.

Now, there are number of subsidiary reasons why that April 26, 1967 order could not be the basis of the claimed exception here from Section 2283.

In the first place as we read the order, there is some dispute about it, but most of the cases that it cites are Norris-LaGuardia Act cases and that it appears to us to proceed primarily on the basis of the Norris-LaGuardia Act.

We contend that the federal court order simply declined an injunction by reason of the Norris-LaGuardia Act and of course, the legislative history of that Act is clear that it leaves open the remedies under state law and in the state courts.

The respondents contend that the federal court order somehow constituted a comprehensive declaration of the party’s rights.

And in effect, I suppose held that Coastline, the neutral road had no right to injunctive relief here on any basis.

On its face, the order simply doesn’t say that.

The most you could say, if the order were a declaration of rights and we read it that way if at all we'd be to this simply a denial on the basis of the Norris-LaGuardia Act, all it denied were rights under federal law.

There is the further point that it is simply an order made upon application for at the most preliminary injunction, indeed it might have been an order simply denying a temporary restraining order.

The record is a little unclear, but giving the respondents the benefit of the doubt it's an order the denying a preliminary injunction and the laws, we submit quite black letter on the point that you cannot have a determination of the party's substantive rights through a preceding on a preliminary injunction application.

We submit then that really what the respondents are trying to do here is to adjudicate this federal law defense, call it preemption or super session or maybe perhaps simply called the insertion of a federal law defense to the state court injunction by enjoining the proceedings in the state court and this we submit is at the core of what Section 2283 says that federal courts are not to do.

Justice John M. Harlan: Well, on what reasons it must rely under the District Court give in denying your application for the --

Mr. Dennis G. Lyons: He said that since the respondents had filed the hand written answer which they did very shortly before the notice of dismissal that it was dismissible as of right and he then declined to grant the injunct -- the order for a voluntary dismissal upon motion.

And he said that since the Court was of opinion that the defendants motion for preliminary injunction, that is their counter motion seeking to enjoin the state court proceedings has merit, our motion for voluntary dismissal will be denied.

Chief Justice Warren E. Burger: What page is --?

Mr. Dennis G. Lyons: That's on page 195 of the appendix Your Honor.

In effect, he is assigned the reason that he wants to pass an injunction against the plaintiff as a reason for denying the plaintiff's motion to dismiss.

Justice Byron R. White: What was your application, the railroad's application for an injunction that was denied?

Mr. Dennis G. Lyons: Back in 1967, yes Your Honor.

Justice Byron R. White: And was the case dismissed?

Mr. Dennis G. Lyons: No, it was not.

The case simply laid dormant for two years.

Justice Byron R. White: And that is the case in which this current order has been entered?

Mr. Dennis G. Lyons: That is correct Your Honor, and that is the case that we now have before this Court.

If the contentions that we make as to the applicability of Section 2283 are not well founded, the Court must still reach the question whether the defense that the respondents have urged to the state court injunction is a good defense.

Now of course, if the Court is in agreement with us, that Section 2283 is applicable here and that none of the exception is applicable, then the Court need not reach this point.

Justice John M. Harlan: And I suppose what happens is the right to the union to review state courts, state court is still available?

Mr. Dennis G. Lyons: Yes, it certainly is, the --

Justice John M. Harlan: That's no judgments, no final judgment?

Mr. Dennis G. Lyons: That's correct.

If I might amplify a little bit on my answer to the Chief Justice yesterday, one of the basic reasons why we did not proceed to have an final judgment entered ourselves right away, was that Judge McCray's order out of the federal District Court enjoined us from proceeding further with the state court proceedings.

That injunction followed on the heels fairly closely of the statement by the state judge that he would be willing to enter a final order and --

Chief Justice Warren E. Burger: And you think that is broad enough?

Do you think that was broad enough to preclude the state court implementing its own decision by a judgment?

Mr. Dennis G. Lyons: Well, he restrained us Your Honor from taking any further action in furtherance of the rights that we have in the state court and that --

Chief Justice Warren E. Burger: Was that the court too or just you?

Mr. Dennis G. Lyons: Just us.

But the state court judge indicated to one of the parties to prepare a decree and that went under the federal court injunction, we were there shortly thereafter.

But our position is plain, the respondents are entitled to a final judgment that they could feel --

We submit that the Jacksonville Terminal case which is the respondent's principle, perhaps, sole authority for the preposition that they have a federal law defense is not applicable to the situation involved here at the Moncrief Yard, which is a yard, wholly owned by the Atlantic Coastline, a non-struck carrier.

Now, we do not intend to take the liberty of parsing for the Court's opinion rendered only one year ago, but we do call the Court's attention to the fact that there was very, very extensive discussion of the very peculiar facts involved in the Jacksonville Terminal case in that opinion.

The fact that, there we had a joint terminal facility which was jointly owned and jointly controlled by the carriers including the struck carrier and the struck carrier had a right to veto over the major decisions that might be undertaken with respect to those premises.

Those --

Justice Potter Stewart: Mr. Lyons, if we agree with your basic argument with respect to Section 2283, we don't get it all to the question of whether or not there's any difference that --

Mr. Dennis G. Lyons: That's correct, Your Honor.

Justice Potter Stewart: Truly in this case, that -- do it?

Mr. Dennis G. Lyons: You do not -- you don't have to reach this --

Justice Potter Stewart: At all.

Mr. Dennis G. Lyons: -- point of argument at this point.

Justice Potter Stewart: If we agree with you on your primary.

Mr. Dennis G. Lyons: That's correct, Your Honor.

Justice Potter Stewart: Contention.

Mr. Dennis G. Lyons: I should have belabored the point but the opinion in Jacksonville Terminal as we read it at least, it seems to us to turn on these unique factors at this jointly owned facility.

This is a facility where FEC employees report for work everyday on foot which was jointly controlled by them, which was in effect the FEC passenger terminal at the northern end, which sold tickets for the FEC, which were repaired FEC cars, which performed extensive switching and rowing services for them.

The Court discussed at some length the analogy with the common situs cases under the Taft-Hartley Act and in effect as we read the opinion, the Court concluded that in that context, the rather tangled involved context of a joint facility that the Court did not believe that it could make a judgment as to what extent the parties self help rights were properly exercisable and to what extent they were not.

The Court took the view that we submit in that area at least that that essentially had to be a legislative judgment.

Now here, we have gone beyond the exercise of self help rights against the primary parties to the dispute.

We have gone beyond the situation where the primary party, the FEC is involved in the joint use and control of a terminal facility.

What we have here is essentially hot car picketing.

At first, it did not start out that way and there are still in this Court protestations that that is not what was going on.

But particularly in the last few days of the picketing here, what you had was an attempt and a successful attempt to induce the employees of the Coastline, operating within the Coastline's own yard, not to handle cars which had originated on the FEC, and not to handle inbound cars coming down from the north that were ultimately destined to the FEC.

Now, there is some talk by the respondents that this was done in a limited way that they only refused to handle long solid blocks of cars, that they only refused to make the very next move down to the point where the interchange would take place.

But the record is plain particularly in the last few days of the picketing that the refusals by the employees went well beyond that.

That they were beyond simply involving this last move down back from the interchange point.

That in one case they declined to move a road train that was destined up to go through way cross Georgia, which is fully made up simply because it had FEC cars in it.

And in the court below in the -- before the state court I should say, the counsel for the respondents took the view that this Court's opinion in Jacksonville Terminal was to the effect that it was no longer any question of how far you can go or how far you can't go, that there was no longer any body of law available to any employer doing business with the FEC, that would in any way restrict their right to picket his business.

Now, we contend that if you read the Jacksonville Terminal case that way, what you have is picketing which I think anybody would consider secondary picketing.

That's not a magic word, but it is a word that expresses sort of judgment about what it is when people who are essentially strangers to a labor dispute have their businesses interfered with by the parties to a labor dispute.

And it is a practice which the Congress has outlawed and outlawed in increasingly stringent terms for the last 23 years, starting at 1947.

And which, the legislatures in virtually all the states and the state courts of common law have outlawed.

What the position of the respondents is as I understand is that despite that because of the fact that the Taft-Hartley Act is not as we concede not applicable here in the railroad industry that there is no agency of Government state or federal, judicial or administrative that can any way regulate or any way deal with these practices regardless of how far removed they are from directly operating upon the party that they have the dispute with.

In other words, the hot car approach, or the hot cargo approach, or the so-called hot property approach is outlawed in firstly every industry by the Taft-Hartley Act and the Landrum-Griffin Act, but not in the railroad area and what is more to say the respondents that the states cannot do anything about it either.

Chief Justice Warren E. Burger: Mr. Lyons, if the District judge relied, if at all, on the business relationships between the Florida East Coast and Atlantic Coastline?

Mr. Dennis G. Lyons: It's a -- I assume you have those before him because that transcript was available to him from the hearing two years before and he did refer two certain findings that the use of the Moncrief Yard was an integral and necessary part of the FEC's operations, which is clear if they cannot receive cars coming down from the north or if they can't, if there is a blockage of the way in which their cars go up to the north, they simply can't operate.

Chief Justice Warren E. Burger: But that reasoning would apply equally if this facility had been owned by completely independent entity with the Florida East Coast and Atlantic Coastline leasing the common facilities apparently with it, is that true?

Mr. Dennis G. Lyons: Well, I suppose that would be the case Your Honor, but of course here, we do have an independent owner, we have the ACL which is completely independent to the FEC.

Chief Justice Warren E. Burger: Well, but I mean independent of each of them, if there has been a complete independence --

Mr. Dennis G. Lyons: Yes.

Or indeed these have --

Chief Justice Warren E. Burger: The reason if the Court would have been the same?

Mr. Dennis G. Lyons: Yes or indeed I would think it you've the same result had they gone up to way cross Georgia or whatever the next junction point, or the next point where they conveniently could have blockaded the trains, getting through these other points going up to the north are similarly integral and essential to the FEC's business.

Unless it can have some way of getting its cars through the points that it is suppose to get them to, beyond its own line, it is not going to continue operate.

Your Honors, we --

Justice Byron R. White: Mr. Lyons, you would making somewhat the same argument if this case wasn't a railroad labor case, but was a under the NLRB, NLRA regime, wouldn't you?

Mr. Dennis G. Lyons: Well, we wouldn't have gone to state courts, but we would have made a similar argument --

Justice Byron R. White: Let us assume the state court purports -- reports to enjoin a union from doing something that is either arguably or actually protected or prohibited by the Labor Act and at the National Labor Relations Board has exclusive jurisdiction to deal with it and the -- but the state court nevertheless purports to deal with it by an injunction.

Mr. Dennis G. Lyons: Yes, Your Honor.

Justice Byron R. White: And I suppose you would be making the same argument that the employer or that the union may not resort to the federal court for an injunction to prohibit the state courts from doing that.

Mr. Dennis G. Lyons: I certainly would.

I'd make the Section 2283 argument.

I do not really see how I could make an argument on the merits --

Justice Byron R. White: That's right.

Mr. Dennis G. Lyons: -- in support of the state court's action because that -- that's a very clear area.

Justice Byron R. White: But the fact the state court had no jurisdiction or would -- it would be said to have no jurisdiction to deal with it, would it make any difference to your case?

Mr. Dennis G. Lyons: To the Section 2283, not at all, Your Honor.

We submit lastly that if the Jacksonville Terminal decision means what the respondents say that it means, it should be reconsidered by this Court, though, clearly we think the Court need not reach that point at all.

Our final contention takes us into an area which is relatively unchartered by this Court's decisions and that is that the Norris-LaGuardia Act here as well as Section 2283 precludes the injunction that the federal court granted.

The relationship between the non-struck carriers and the rail unions has been held by the lower courts and this Court in a four to four decision once upheld that as being a relationship arising out of a labor dispute.

And hence, in the Jacksonville Terminal case by this Court and then this case, the Moncrief case by the lower court, the non struck carriers have been held not to be entitled to have a federal court injunction.

We say that the Norris-LaGuardia Act works both ways.

If the federal courts may not pass an injunction against the unions, we submit that in this situation, they may not pass an injunction against the non struck carriers restraining them from the use of the state courts.

It is clear on the face of the Norris-LaGuardia Act that it does work both ways, that it does inhibit injunctions against management just as it inhibits injunctions against unions.

And in fact, we quote in our brief considerable dialog in the floor of Senate and the House which indicate the Congress recognized that this was a two-edged sword when it was passed back in 1932.

Indeed, some of the practices that can't be enjoined are practices that only an employer could commit i.e joining an employer organization.

So, we submit that the very broad contention that the respondents make that the Act doesn't apply at all to injunctions against management is not correct.

We also say that Section 4 (d) of the statute makes it plain that injunctions against the ordinary course of judicial proceedings were one of the evils that Congress was trying to deal with when it passed the statute.

That being so, we are confronted with the very flat prohibition in Section 7, which flatly restrains the Courts of the United States from granting any injunction or labor dispute unless certain findings were made and those findings were not made here, including findings which certainly were very relevant to the subject matter here.

Namely, there was no finding that the complainant has no adequate remedy at law, certainly his appellate rights in Florida state courts would have precluded the making of that finding.

Indeed, there was no attempt to comply of Norris-LaGuardia Act at all.

So for this reason as well, we contend that the injunction here should not have been granted against the state court proceedings and that the judgment of the Court of Appeals should be reversed.

Your Honors --

Justice John M. Harlan: They just -- there is a -- going on that?

Mr. Dennis G. Lyons: No, there is not.

The -- we do have a stay of the federal court order which is in fact --

Justice John M. Harlan: As was said by Justice Black?

Mr. Dennis G. Lyons: Yes.

Yes, Your Honor.

With the Court's permission, I'll reserve the rest of my time for rebuttal.

Chief Justice Warren E. Burger: Thank you, Mr. Lyons.

Mr. Milledge.

Argument of Allan Milledge

Mr. Allan Milledge: Mr. Chief Justice, may it please the Court.

We will demonstrate in our argument that this case, this injunction issued by Judge McCray against inconsistent state court action is not an isolated case, but it arises out of a totality of regulation of the Florida East Coast dispute that goes back to 1964 and involves every aspect of this strike including regulation of good faith bargaining, regulation of the self help rights of the railroad, regulation of the self help rights of the unions, the actual operations of the railroad itself, and that all of these are interrelated and all bear upon each other.

Justice Byron R. White: You mean that, you'd have some problem with the state court enjoining a violent picketing?

Mr. Allan Milledge: Not violent picketing, but --

Justice Byron R. White: Well, then the federal court didn't take over the entire controversy?

Mr. Allan Milledge: With that exception.

With the -- that exception --

Justice Byron R. White: Why not the exception for secondary activity?

Mr. Allan Milledge: Because this Court has held in the Jacksonville Terminal company case that that is not only preempted or that a state law may not apply in that field --

Justice Byron R. White: Well, it is not preempted of the -- it is not preempted to the --

Mr. Allan Milledge: Of jurisdiction --

Justice Byron R. White: -- of the federal court either.

What can the federal court do about it?

Mr. Allan Milledge: Well, it is -- as we interpret the opinion, it is protected conduct to engage in whatever reasonable conduct that the organizations --

Justice Byron R. White: So, what jurisdiction does a federal court have about that --?

Mr. Allan Milledge: Well, the railway --

Justice Byron R. White: Federal court is preempted too, isn't it?

Mr. Allan Milledge: In the opinion, there's the area of course of damages which would be an area that the federal court could deal with.

But in the opinion of this Court of the last term is, as we read it, that there is no limitation upon the self help rights so long as they are reasonable and that is a matter that has been of before the District Courts, a number of times and I think I can develop also the interrelationship.

The second thing that we will demonstrate is that the power of the District Court to enjoin the state court action here under 2283 in this Court's opinions is beyond question that it has that power.

Chief Justice Warren E. Burger: Do you agree with Mr. Lyons that Norris-Laguardia is a two-way street, --

Mr. Allan Milledge: Well, --

Chief Justice Warren E. Burger: -- in its prohibitions?

Mr. Allan Milledge: We think that with the two -- really, there is only one provision in the Norris-LaGuardia Act that applies to management and that is the one he sited about employer organizations.

But, we think our basic position on that is that the tail will go with the hide, that once the 2283 problem is dealt with, the Norris-LaGuardia Act problem -- the Norris-LaGuardia Act just basically is not designed for this type of a problem and will develop that later, but our position is not that the Norris-LaGuardia Act can not apply to an employer.

Now, the third position that we will develop is that this case is the strongest case for the application that is the should aspects.

We will demonstrate that there is the power of the District Court to do this, but this is the strongest case for the application of an injunction against a state court that has ever come before this Court or a lower court in a reported opinion and it is a stronger case for the granting of such injunction than any reported case granting one.

In connection with the totality of regulation of -- by the federal court, there are four separate cases, cases that is with separate file numbers, that the jurisdiction of which, is aided by this injunction and orders are need to protection of this injunction.

Now, the types of matters which have been before the court below are absolutely legend.

This Court recalls the clerk's case that was before this Court, that was a case brought by the United States Government.

It is a case in which it was determined that the Florida East Coast railroad for the first two years of its operations, its post strike operation was operating in violation of the Railway Labor Act.

There was an order entered in that case requiring good faith bargaining.

There was an order in that case granting to the railroad certain limited exceptions or deviations from its collective bargaining contracts in aid of its self-help rights.

That case still pends that there is a trial commencing our final, another final hearing in that case commencing the first week of April to go on for all of April and all of May and the issues are again, the good faith bargaining that is all in contempt citations, the good faith bargaining, massive violations of the injunction since the strike, and on other issues.

All of that still pends and the good faith order, the good faith order depends on economic sanctions.

As Justice -- Mr. Justice Brennan has written in the Insurance Agents case, and has written in other cases too, and it is in the Galveston Wharves case the decision of the Fifth Circuit in the same area of 2282, that bargaining, the motive power in bargaining is economic sanctions.

Now in this case, that is the Florida East Coast strike, there are as there are in all railroad or other situations two types of economic sanction.

One is the withdrawal of your people at the commencement of the strike and the second type is picketing aimed at those persons, the employees or persons making pick ups and deliveries to the struck employer.

Its -- in other industries, it's more general than that, but in the railroad industry, the place where you put the pressure on is where the railroad gets its freight from another railroad.

Now, from the commencement of this strike up until the present, there has not with the exception of a few hours in 1966 and a few hours in 1967 any use of the economic sanction to stop pick ups and deliveries from other railroads by asking the employees of other railroads not to do so.

That has been prevented by an injunction initially issued by the United States District Court for the middle district to Florida and that is another case in which in that case still pends.

Now Mr. Lyons in his brief has talked about that case.

That's a case in which the United States District Court has assumed jurisdiction over interchange and the organizations, labor organizations were never allowed to get into that case, and as they say, it mandates interchange.

Now, what is happened since that time is, there was a lawsuit filled in 1965 by the organizations to construe that injunction as not to apply to employees who had -- of the connecting carriers.

Then in 1966, the Trainmen strike against -- the Trainmen picketing of the terminal area began and effectively, there was a construction of that assumed jurisdiction over interchange to initially not permit picketing of the terminal company and ultimately to permit picketing of the terminal company.

And then in 1967, in this case with the different file number nonetheless, the Court has again, but with a different file number assumed jurisdiction to determine whether or not we and I say in this case we, it is the Brotherhood of Locomotive Engineers, can picket the Moncrief Yard.

All of these cases are all interrelated and they all have impact back and forth on each other.

Justice John M. Harlan: Can I ask you a question?

Supposing the Judge McCray allowed dismissal of Atlantic Coastline to or supposing that particular suit would not been petitioners [Inaudible].

Would you go in to the state court or to the federal courts to bring an original action bypass the state judge and appellate court procedures out of the view here rather --

Mr. Allan Milledge: If there were -- if there was no jurisdiction that had been assumed by the United States District Court or no orders that needed to be protected or effectuated, I would say that we could not.

Now, the difference --

Justice William J. Brennan: [Inaudible] any of these other pending suits?

Mr. Allan Milledge: I think that we could.

I think that we could have gone into the Government's case, the good faith bargaining nexus is exactly the same there as it is in the Galveston Wharves case, which we will discuss after a bit.

We could have gone in if permitted into the case in which there was already assumed jurisdiction.

The -- what's called the 6316 case or the initial case assuming jurisdiction over interchange.

Once in as we come later as I'll get into as quickly as I can into the 2283 question, once there is federal jurisdiction to determine the controversy, wherein far enough so that an injunction maybe issued.

Now in a case like that, you probably wouldn't get into the area of should it be issued.

This case makes as we'll show later an overwhelming posture for the “should aspect” of it, but what the statute says on the could or the power is simply a case in which it is necessary to a jurisdiction or a case in which an order needs protecting or effectuating, that's what the Congress say.

Justice William J. Brennan: This petitioner is not, however, a party in any of these actions that you're talking about, is it?

Mr. Allan Milledge: Petitioner is a party to all of the interchange actions.

Justice William J. Brennan: And Atlantic Coastline --

Mr. Allan Milledge: Atlantic Coastline railroad is --

Justice William J. Brennan: Is it the only one or --?

Mr. Allan Milledge: No.

All the railroads are --

Justice William J. Brennan: All are.

Mr. Allan Milledge: -- to the initial case upon which the federal court assumed and mandated interchange.

All of the carriers are, possibly Southern is not, but Atlantic Coastline, the Seaboard, of course it is all one railroad now, and the Jacksonville Terminal are all parties to that and the Southern was too, I recall that Southern --

Justice William J. Brennan: Is that a litigation that involves this labor dispute with FEC?

Mr. Allan Milledge: It was -- it is and that's the petition that is the complaint was filed in that case on January 27, four days after the strike commenced by the FEC against these other carriers saying that, they -- the other carriers were refusing interchange that they had imposed an embargo and indeed they had imposed an embargo and the labor organizations were not parties, but the justification given by the defendant railroads, that is the other railroads, was -- if there was a labor dispute and that these people, that is our people would picket the interchange and so they want --

Justice William J. Brennan: Now, you've probably already said it, but will you repeat for me again?

How was it that we could get into that as I understand your argument that there is a judgment which in that case which will entitle the union now, the relief in that action of the kind you got here against the state court suit, how does that come about?

Mr. Allan Milledge: Alright.

That, the injunction in that case applies to the Atlantic Coastline and its employees, the terminal company and its employees.

Now, that is an injunction -- the jurisdiction of the Court is over the question of interchange and it applies to employees as well.

Justice William J. Brennan: But how are you going to get into that suit, that is what I am interested in?

Mr. Allan Milledge: We would be by intervention but the question is a question simply of how does 2283 read. For instance, in the Capital Service case --

Justice William J. Brennan: Well, I appreciate, but you answered Mr. Justice Harlan and if there -- if this present proceeding hadn't been brought at all the federal court that nevertheless you would be able to get in as I understood you would say?

Mr. Allan Milledge: Yes.

Justice William J. Brennan: Under this interchange case.

Mr. Allan Milledge: Well, the way --

Justice William J. Brennan: In a way which would entitle you to have the same relief that you could actually got in this case.

Is that your argument?

Mr. Allan Milledge: Yes.

Now, the way we actually went about it, the way we went about it was in 1965, we filed another case to construe -- we sought intervention and we are denied and Judge Tuttle discusses that in the case, one of the Jacksonville Terminal company cases.

So, then we filed a suit to construe it.

Justice William J. Brennan: Where did you bring that one?

Mr. Allan Milledge: Before the same judge in the same Court.

Now, that one didn't reach any file determination because in the mean time in 1966, the Trainmen went on strike and began to picket the terminal which was nominally in violation of the injunction and the same judge, Judge McCray and enjoined it initially and then later reversed -- his injunction was reversed by the Fifth Circuit.

So, that for -- as a practical matter that that original case, 6316, the original embargo injunction case has been modified by the 1966 case and by the 1967 case, this case is presently before the Court.

All of which deal with these really the same problems, the interchange between the connecting carriers and this railroad.

Justice William J. Brennan: Well, basically then your argument is it -- I'll let the – you -- to the 2283 problem is that this interchange action has a judgment, which this present proceeding protects or effectuates, is that it?

Mr. Allan Milledge: No.

Our basic answer is that Judge McCray has -- as he says, “Determined the rights of the parties.”

In this order on appeal, he says, “I delineated the rights of the parties.

I did make a substantive determination between the parties.”

Now assume that, he was wrong about that, that he really hadn't done that, that Mr. Lyons is somehow right that all his order was was an Norris-LaGuardia order.

Certainly, he has assumed jurisdiction to do that.

He's had jurisdiction to do --

Justice William J. Brennan: I know, but what -- to protect or effectuate, what judgment?

Mr. Allan Milledge: Well, the language of the statute does not require that there be a judgment to be construed, to be protected or effectuated.

The language of the statute is -- were necessary in aid of its jurisdiction.

For instance, --

Justice William J. Brennan: Oh, I see.

Is that the one you're relaying on?

Mr. Allan Milledge: We -- there -- we rely on both of them because they are both in point.

What I was saying is that even if his 1967 order wasn't an order that required protection in first place, well, even if it was and we say it was because he says it was.

Even if it wasn't, he certainly had assumed jurisdiction to determine the legality of this conduct.

So, he certainly has the jurisdiction.

Now, we've heard over here that everything was done, everything was done in this litigation to entitle them to a final judgment.

I forget the exact terms, but you recall what Mr. Lyons says, talked about it and says Mr. Friedman that after this injunction against the state court proceeding was entered that they asked Judge Scott, the other district judge, to either set it aside or to give them a final judgment because everything that had been done, all the facts were in and all he had to do is just enter a file of order.

I mean that's true, I mean, that's where the case is.

It is a question of either our conduct is legal or illegal, Judge McCray says his ruled that its legal conduct and when he made that ruling back in 1967 and this is along the line that there is a judgment to protect or effectuate.

He -- this Court had not yet ruled in Jacksonville Terminal, but you will see in his opinion or order that he cites Section 20 of the Clayton Act.

Now, this Court has heard about Section 20 of the Clayton Act from us since 1966 that Section 20 of the Clayton Act as discussed by the Hutcheson case in Norris-LaGuardia breathing life back in the Clayton, it's been our position on legality from the beginning.

And that's what Judge McCray said in his order in 1967 and that was before the order of this Court to be sure, but that is what his determination was.

He determined that Norris-LaGuardia applied, but he went much further than that.

He also in terms of this order being an order which is necessary to protect or effectuate, he cites -- defines that we were engaged in a major dispute and he cites the B&O case, which is a standard fairly recent then, casing that once you had exhausted the procedures of the Railway Labor Act, once there was a major dispute, then you are entitled to self help.

You had a legal right to self help.

Now, the content of self help is something else, but it's -- we -- it is certainly been said often enough by this Court that -- that self help implies as it does -- as it must, since there is the duty to bargain in the Act, it must imply primary strikes and primary picketing.

Now, he cited the B&O case, this is a major dispute, he talks about what we did.

Now, I haven't got into the facts and I may never have a chance to get very far into the facts, but we've heard over and over again and this Court has heard over and over again, this great tale of horror.

The world is going to come to an end.

Now, since 1963, one road train has been 32 minutes late and the yard in this case was 15 hours late.

But that's all that's ever happened and all that has ever happened is that the -- in the exact place where the Florida East Coast railroad ends, and I am not talking about ownership, I'm talking about where its railroad trains run?

In this case, they run into the Atlantic Coastline property where they complete their business.

They make a delivery and they make pick ups in the employees of the neutral.

The Atlantic Coastline, are people that under any idea of primary picketing, we are entitled to ask, “Don't pick up and do not make deliveries to the primary.”

Now, this happens to be a case.

This Moncrief Yard picketing in which every effort was made to limit the manner of picketing so that it would have the effect only on pick ups and deliveries.

Now, we didn't even use a picket line.

If we put a picket line up at the one and only entrance, the only place that employees of Atlantic Coastline go to work in the Moncrief Yard is at this one employee entrance.

If we put a picket line there, those employees whose duty it is to make pick ups and deliveries to the FEC within that yard, where the FEC engines come, no other place to reach those people, if we will put a picket line there, that closes the yard down.

Now, there is this assertion over here made that that's really what we had in mind doing that we just want to close the yard down.

And what we did, I might say was we let the people go to work, we just asked them simple thing, “Don't handle the interchange” and that is what they did.

Now, that relates back because that's what Judge McCray found in his order, now, I'll show you that in just a moment.

But --

Chief Justice Warren E. Burger: Does that go to any issue other than the character of the picketing --

Mr. Allan Milledge: It really -- no, it is really doesn't.

This conduct here in question, however, is more primary than the conduct in the Jacksonville Terminal Company case, that's about all it really does go to.

We are not some villains that are out to close down the world or close down the railroad or anything else.

We do want to apply the economic power, the economic sanctions to the place where the railroad gets its traffic.

Now, just to go because there was this business about we want to close the yard down or something that's what they say over and over in the brief.

They quote a man named Jeanneth who is quoting a man named Sims, Jeanneth is their overall man and Sims is our overall man.

Now of course, Mr. Sims testified and as Judge McCray found all we were doing was stopping the interchange movements.

But Mr. Jeanneth in cross-examination said, my question to him was and you had some conversations I believe, I am reading from page 109 of the appendix, and you had some conversations I believe with other different union people or at least, they were there like Mr. Sims answered.

I talk to you and to Mr. Sims question, “You understood did you not that the purpose of this activity was only to stop FEC traffic?”

And sir, “That was my understanding.

Yes sir.”

That's the man there quoting earlier for that, we were going to close the world down.

Now, in connection -- well I just might, since I got started on it, just tell you that Judge McCray's order, the order of 1967, paragraph number six which is on page 66 of the appendix, finds if that is what we were doing.

That we were asking people not to make pick ups and not to make deliveries and that was that.

Now --

Justice John M. Harlan: How many cases did you get when you filed case [Inaudible] Court --?

How many cases that you have been able to find where there's 2283 power has been exercised --?

Mr. Allan Milledge: Alright.

The Galveston case in the Fifth Circuit which certiorari was denied by this Court this past term, the picketing very similar to this on the grounds the state enjoined to the secondary and the nexus was a good faith bargain order.

There is that case, there is the Capital Service case. Capital Service is a case which came before Richman Brothers.

And in Capital Service, the board had invoked the jurisdiction of the District Court, hadn't entered any orders at all, but had invoked it, invoked the jurisdiction for the purpose of entering some orders pertaining to alleged secondary conduct.

And this Court held that that was proper under 2283 then the injunction against the state court was proper to unfetter the federal Court so that it could make a determination.

There is that case, there's -- I have a list, if I can pick them up quickly.

Justice John M. Harlan: Are they connected in brief?

Mr. Allan Milledge: Yes.

The Looney case is the case that this one -- this case is most similar to.

It's very similar -- this case is very similar to really three cases.

It's very similar to Galveston Wharves.

It's very similar to Capital Service because the difference there, the Board invoked the jurisdiction as only the board can under that Act.

Here, it is private parties who may invoke the jurisdiction of the Court.

But the Looney case is case that goes back quite a number of years, but the Looney case is a case in which this Court approved an injunction against the state court case -- state court injunction in a Texas rate dispute that is the way I think of it in any event.

And that case, the Looney case is discussed, it is quite significant because it is like Capital Service in that an injunction was issued, it was in aid of jurisdiction but of the Court rather than to protect or effectuate a judgment.

But the Looney case is of particular significance because it is discussed at length in the Toucey decision.

The Justice Frankfurter opinion for the Court, and Justice Reed's opinion for the minority, and in both the majority and the minority, the same conclusion is reached about Looney.

Justice Frankfurter in that case said that, that case was granted merely to protect its jurisdiction until the suit brought by the carriers was finally settled.

Now the significance of that is this.

2283, Mr. Lyons has suggested to us that 2283 has a lot of pigeon holes and this does not fit a pigeon hole.

The pigeon hole for a race, there is a pigeon whole for a removed case, there is a pigeon hole for fully adjudicated case and that is all he said, the pigeon holes were in his main brief.

Now, a lot of cases don't happen to fit in those pigeon holes, but 2283 isn't a pigeon whole statute.

The history of 2283 is that, it initially was a flat blanket statement by the Congress, “the District Court shall not enjoin state courts” and then eventually the bankruptcy addition came into it.

And then finally in 1948, it was changed because of Toucey, but what had this court done in the mean time?

This Court had said that obviously, there are situations in which it is necessary that having jurisdiction, a District Court has got general equity jurisdiction in it has got to be able to protect that jurisdiction.

And so, various cases came along and Looney was one of them that where it was necessary to protect the jurisdiction.

Now, Justice Frankfurter in 1941 in the Toucey case said that, the policy against enjoining state courts was so great that even a fully litigated case that was a money judgment diversity case, but the policy of the United States against enjoining state courts was great enough to require somebody who would fully litigated the matter in the federal courts to go ahead and just plead res judicata and go on all the way up again through the state system and back around.

Now, that was reversed by Congress and they -- so, you no longer, you have an entirely different statutory format starting in 1948.

It isn't a question anymore of the Court having to look to its some general equity considerations, but the Congress has said and the reviser says the same thing and they do not limit it to pigeon holes, but particularly the language of Congress, a District Court may enjoin where necessary in aid of jurisdiction or to protect and effectuate judgments.

You have both here and really the question is the question of the should aspect.

Justice Potter Stewart: You don't suggest, do you that this 1967 judgment was res judicata on the railroad, do you, insofar as precluding it from going into the state Court, under the state court --

Mr. Allan Milledge: No.

What our position is with regard to the state court matter is that whatever that Court does or does not do, right, wrong or indifferent that that impinges upon the jurisdiction of the federal court which was assumed to make those determinations.

Justice Byron R. White: Why -- Why --

Mr. Allan Milledge: We also say that it did happen.

Justice Byron R. White: Why does it if is acting under state law?

Mr. Allan Milledge: Well, we now know --

Justice Byron R. White: The federal Court -- was the federal court dealing on a state law problem?

Mr. Allan Milledge: Well, the federal court could deal with the state law problem.

Justice Byron R. White: Well, it didn't purport to be?

Mr. Allan Milledge: Well, if (f) under ASCO decision of this Court, what you plead is a set of operative facts?

You do not plead all this business that comes from the other side of the table about the federal court couldn't deal with the state court with state law.

Justice Byron R. White: Was there diversity in this case?

Mr. Allan Milledge: No, I am not quite sure.

Justice Byron R. White: Well, what jurisdiction would this federal court have had to deal with the state law of question?

Mr. Allan Milledge: Well, there is no longer a state law question but I would assert base upon last year's determination of this Court.

But at that time, if the Court had jurisdiction as it did under the Railway Labor Act and under the Interstate Commerce Act, it could use whatever body of law that there was that was applicable under pendent jurisdiction or ancillary jurisdiction.

District Courts of the United States everyday apply state law and it is usually in diversity cases, but they also apply state law in pendent jurisdiction cases where in this case it would be the Railway Labor Act.

Justice Byron R. White: What you are saying is that in 1967, the District Court in effect declared that this is protected conduct to free from interference by any Court under the federal law?

Mr. Allan Milledge: That is what we say he did.

Justice Byron R. White: What?

Mr. Allan Milledge: Correct, yes.

Justice Byron R. White: And you're saying that the railroad going into the state court is maybe enjoined because of its acting contrary to the -- at least the declaratory judgment that was entered against it?

Mr. Allan Milledge: Yes.

Defendants can win, I mean, the position that Mr. Lyons is “If you don't rule for the plaintiff and don't grant an injunction, then nothing has happened.”

Defendants can never have the benefit of this doctrine or benefit of protection if it had been -- let us say a fully litigated case with res judicata, I suppose that would be something different, but that somehow if the defendant gets rules for that that isn't an order requiring some kind of protection.

Well, he did rule the question of the legality, the issue of legality of our conduct was submitted to Judge McCray in 1967, about that, there can be no question.

Now, there was a question up until this past year as to whether or not there might be some independent state remedy as it was thought that could intrude into railway labor.

Now as long as that was the case, and there the suggestion is made, well, if it required protection -- If it is what you say it is, why didn't you go in 1967?

Well, you're into the area then of the question of really a should preposition.

Until this Court has ruled and incidentally the arrangement was with counsel that we would let the 1967 picketing cases lie until this Court had ruled and when this Court had ruled within about two weeks we were in before Judge Locke.

So, why the reason for not going in, in 1967 is that a Federal District Court with that question remaining as an open question would be reluctant to enjoin not because it couldn't, not because it didn't interfere but because that just would not -- you never get somebody to do it is really what's involved, but once its clear that that interferes it's not a question of trying a res judicata defense, it's not a question of under the statute, it is not question of any of those things.

It's simply a question that the state court action fetters the federal court in making its determination or it is contrary or in some -- it does not really even need to be contrary as long as it's necessary to some reason or to be necessary for the court to take action and here, that is really very clear.

Now, it is said by Mr. Lyons that Richman Brothers ends the matter and that Richman Brothers says that there is a forbidden fruit here that you can't try a preemption court -- a defense in the Federal District Court, that you got to let that go on up.

Well, that isn't what Richman Brothers says.

In Richman Brothers, there was no jurisdiction of the United States District Court.

That jurisdiction had been preempted by the National Labor Relations Act.

Justice Potter Stewart: There was no jurisdiction in either state court order or federal court?

Mr. Allan Milledge: No.

There is no jurisdiction anywhere around.

So, there was no jurisdiction to aid and no order should have been entered.

So, 2283 could not apply.

It really is just about as simple as that.

Now, the language --

Justice Potter Stewart: [Voice Overlap] the opinion of the Court has been written quite that simply?

Mr. Allan Milledge: No.

The opinion of the Court in “the should” area is Justice Frankfurter again writing the author of Toucey and he writes a lots of reasons why it shouldn't be done.

But fundamentally, it all does come back down to the question of there was no jurisdiction to aid or a judgment or order to be protected.

Now, Professor Moore has something to say about this.

Professor Moore says the -- and this is on page 43 of our brief, “The second exception permits a federal court to grant an injunction against state proceedings where necessary in aid of its jurisdiction.”

This puts back into 2283 some of the judicial flexibility which Toucey had removed from the statute.

And despite the strict reading of 2283 by Richman Brothers, flexibility still remains for Richmond as we shall see held only that the District Court had no jurisdiction to aid. But if on the other hand a federal court has jurisdiction, then under the terms of 2283, it may enjoin state court proceedings where necessary in aid of its jurisdiction.

Now, since that time there has been the Galveston Wharves decision of the Fifth Circuit.

It's possible that it is very round decision is since that time as well which -- but perhaps not.

The Galveston Wharves decision was a case like the FEC in this regard that it had been to the Fifth Circuit Court of Appeals three times.

It is -- it was a case that had spawned considerable litigation.

The state court had enjoined picketing, the federal court had mandated that the carrier engage in good faith bargaining.

The federal court enjoined the state court from enjoining the picketing because of the impact that that would have regardless of considerations of secondary conduct and Galveston again was a decision before this Court's decision in Jacksonville Terminal and that case is essentially in terms of the power under 2283, essentially the same case as this one.

The Sperry Rand case is a Court of Appeals case in that case an injunction was issued against the state court to protect a discovery order of the federal court.

In the Brown versus Pacific Mutual case, which is a case which goes back prior to the 1948 Amendments, Justice Parker issued an injunction against a state court or rather he affirmed an injunction against a state court in a case which only involved cancellation of an insurance policy.

The suit in the federal court was for cancellation, the suit in the state court was on a $450.00 claim arising under the policy and he discusses at great length and this is back when there were no exceptions to 2283.

He discusses the Kline case which is a case Kline, and Toucey, and Richmond are really the cases most often talked about, but when you come through all of it and that injunction was sustained, but it never reached this Court, but when you come down really to all of it, certainly the Looney case is still the law.

The Looney case does not fit into any body's pigeon hole.

The Looney case is simply a case in aid of jurisdiction.

This is what the respondents say about Looney and the Sperry Rand case.

What they teach is that an interlocutory order of a federal court is as much entitle to protection by injunction against interference from a state court as a final order.

That's certainly true under Looney.

Looney -- the principles of Looney were certainly carried forward and probably broadened in the, but at least carried forward in the 48 revision, and that is certainly within the language of 2283.

Now, the reason that this case is the strongest case that of any case for the application of 2283 is this.

There are at least 0 or 40 separate cases the District Court has had, innumerable cases involving this.

The Fifth Circuit has had opinions that, I don't think you can number on two hands.

All of these matters ultimately come down to one thing that the Florida East Coast strike will be settled only if there is bargaining, when you finally come down to it.

Now, there has been no economic power, no economic sanction that could be put to bear upon the Florida East Coast Railroad since the first two years of the strike, except the economic sanction of asking the employees of the neutral railroads not deliver cars to the FEC.

Now in a situation like this and what, the reason really I think that the economic sanctions initially didn't bring any kind of settlement, was because the FEC immediately started all these illegal operations for which there is a proceedings now about restoration of the status quo and so forth, but they effectively through illegal conduct wanted that, that is not the fault of the Atlantic Coastline.

But also from the very beginning, the other form of primary activity and surely there must some way in the railroad industry that you are entitled to ask the people who make pick ups and deliveries in the terms of the Steelworker case or in the terms of this Court last year not to do that and of course, one knows that in this industry that they won't do it if you ask them not to.

So, there is an economic power that has never been used.

That is what is involved in this case and this Court has decided that state courts have no business in this field.

That interferes with not only the federal scheme, but that interferes and with jurisdiction assumed over the bargaining, over the self help rights of the railroad and over the question not only of interchange between the carriers, but interchange as it affects the rights of this people and it is all one ball of wax.

But if for instance, let us assumed that a state court tells the federal court that the railroad cannot deviate one iota from its contract and we know that Judge Simpson who is originally the District Judge following the mandate of this Court, allowed the railroad to get away in its operations from certain matters, I forget exactly what they were to long, but some matters of its collective bargaining agreement.

Now, there wouldn't be any hesitation, I dare say, that that injunction by a state court would come within 2283 and be stopped.

And this is simply the other side of the coin and the only reason it looks any different in perspective is because the order says, “Okay, do it.”

Or at least, “I'm not going to give relief against it” and so you can say, well that isn't some kind of an affirmative duty, but it bears on it -- the Court assumed jurisdiction over the legality of this conduct and as a state court order that impinges upon that and it isn't tangential at all, it's the heart of the whole business and no bargaining will ever make any sense until the day that there is some economic power on the part of the organizations.

I mean, the basic dispute still pends it's over 10 cents an hour.

A demand made in 1961 and for 10 cents an hour the hold up strike can be settled for 10 cents an hours in an economy that from 1961 to 1969 has expanded 25 -- on inflation 25%.

I mean, so something is wrong in this strike and it is that this traditional weapon of labor, primary picketing against people who make deliveries and pick ups has never been able to be applied.

Justice Byron R. White: Did I understand you sometime back and say that after 1967 injunction suit by the railroad in the Federal District Court that you might have some problems here if you had to start a new suit to enjoin a --

Mr. Allan Milledge: Well, I think that in the totality of this situation that with the perspective in the first place.

The perspective of the statute is not litigant's contentions or anything else.

The perspective of the statute is the power of the Court and it's whether the power of the Court depends on whether it is assumed jurisdiction and it has assumed jurisdiction over the bargaining orders which --

Justice Byron R. White: Wouldn't you have some problem with Richman Brothers at least, if there had not been any suit in the Federal District Court at all and that the employer went right to the state court got an injunction and then you started action in the federal court?

Mr. Justice Harlan asked you awhile ago I think about that.

Mr. Allan Milledge: Well --

Justice Byron R. White: I thought you answer was you might have the answer to the problems with that?

Mr. Allan Milledge: Well, the Capital Service case, this case, if that were so if there was no prior litigation at all, I believe that is your assumption of no litigation at all, you would then have a situation which is like the Capital Service case.

The difference would be in Capital Service, it is the Board that invokes the jurisdiction of the court and then in the Capital Service, the Court unfettered itself first.

Under the Railway Labor Act, it is private litigants who invoked the jurisdiction of the Court to make a determination under the Railway Labor Act.

And if Capital Service is analogized to the Railway Labor Act, then an initial proceeding brought by a private litigant to have the federal court determine a question of Railway Labor Act law would be entitled, once the Court had assumed jurisdiction to do that would be within 2283.

Now, that doesn't make a stronger case for the “should aspect” as we have in this case because of the totality of all of the different factors.

Now, it has been said several times all we need to do is just go ahead and follow our appellate remedies and it is true the appellate remedies are there and we can take an appeal and we'll get back around here.

Justice William J. Brennan: You agree if you get a final judgment?

Mr. Allan Milledge: Oh, yes we can.

Well, if Judge Locke would do what he said he would his letter and enter a final judgment, we could appeal from that, that's quite true.

That is true in every 2283 case and that doesn't affect the policy of 2283, and that is a singularly inappropriate way to deal with a labor dispute.

If a federal court has taken jurisdiction and had orders, then we'll be back here two years from now so that this Court can say that Jacksonville Terminal, when it says that state law can apply, means act, and then when some state judge wants to take jurisdiction over something again, well, we'd be back in another two years after that and so forth and so on.

Now, the federal interest in the settlement of the Florida East Coast strike is enormous.

The Federal Government has been in the case since the beginning not the one with this case number on it.

It does affect whole regions and to have that procedure and that's really what the decision I think that this Court comes down to, really the question that is, is this the type of a case, like a money judgment case in a -- it's already been determined that Toucey was wrong that fully litigated diversity, but personal money judgment case that you could and should enjoin a state court.

Congress said that, Congress was upset to think that you couldn't do that.

Mr. Allan Milledge: But this case if that's so, then this case is just overwhelming for that in -- I didn't discuss the Norris-LaGuardia Act at all, but our position is stated in the brief.

Chief Justice Warren E. Burger: Thank you, Mr. Milledge.

Mr. Lyons, you have about five minutes left.

Rebuttal of Dennis G. Lyons

Mr. Dennis G. Lyons: Mr. Chief Justice, may it please the Court.

Mr. Milledge referred to a number of other proceedings besides the case at Bar which presumably the District Court was protecting orders in -- by enjoining the state court proceedings here.

Now, the District Court itself never cited any of these other cases.

I don't believe they were cited to it by counsel.

They were mentioned for the first time in this Court.

There are three proceedings essentially, one of them is the so called the Clerks case to which the neutral carriers are not even a party.

The other is a proceeding in which there's never been any order entered of any affirmative or even negative sort it and the only other one is this 1963 case and the only order that has ever been entered in that and we discuss all of these in our brief.

The only order that has ever been entered in that is an order that the FEC got against the Atlantic Coastline and the other neutral carriers requiring them to interchange and we scarcely see how the state court order in any way contravenes that order since the picketing that the state court sought to enjoin was designed to disrupt the interchange by getting the Coastline stop the interchange.

This case is quite different than from the Looney case which was mentioned frequently by counsel in his oral argument.

In Looney, there was an affirmative interlocutory injunction granted by the federal court.

Then a state court ordered the taking of certain action which was inconsistent, completely inconsistent with the federal court injunction and it was held that the federal court could enjoin proceedings upon that state court injunction notwithstanding that the federal court injunction was interlocutory.

This is an entirely different case.

There is no order whatsoever that the injunction under review protects or effectuates the assertions of the federal court's jurisdiction in this case, have been solely assertions as to the federal law rights.

There is no diversity, the state law claims were never pleaded.

We get down to the final point in this case that what the respondents are trying to do here is to adjudicate this defense based on their reading of the Jacksonville Terminal case by way of brining an injunction against the state court proceedings.

Now, they have stated that the argument we're making is essentially a pigeon whole argument that they have to point to a specific exception to the statute.

Well that is the way the statute reads, pigeon whole is a kind of a tendentious way of saying it but it's a general statute with specific exceptions.

As the Court said in Richman Brothers, legislative policy is here expressed in Section 2283, in a clear cut prohibition qualified only by specifically defined exceptions.

The exception I think that the respondents are trying to urge on this Court is the exception that we heard much of the very end of Mr. Milledge's argument and that is that they just can't wait for the orderly adjudication of their federal defenses in the state courts.

They have not joined with us in entering a final judgment.

They admit that they could have had one entered.

They have left that situation stand now for nine months.

They have not lifted a finger to take an appeal in the state courts.

The preposition we submit that the respondents are urging upon this Court cuts at the very heart of what Congress tried to do back in 1793 and ever since when it is enacted and reenacted this statute.

Justice Byron R. White: Mr. Lyons, let me ask you, if this -- if in 1967, the federal court had said expressly or in effect that this issue before me is governed exclusively by federal law and if the railroad has no right to an injunction under federal law.

Now and then, the railroad promptly resorted to state courts and asked the state court to adjudicate the controversy under state law and asked for an injunction under the state law.

Mr. Dennis G. Lyons: If he had purported to -- had purported to exercise the power adjudicate state law claims or deny their existence, then --

Justice Byron R. White: Well, we can say federal law preempts at all --

Mr. Dennis G. Lyons: -- and it's exclusive, then we would have quite a different case.

You could make the argument that what we were trying to do then was to re-litigate that order and that we should have appealed that order.

Now, we didn't appeal his order and if it said something else from what it had said, presumably our decision as to appeal would have been quite different.

Due to the intricate litigation, which is in the background of this case, and the complex factual setting as well as the unique procedural vehicle which was employed by the respondent Brotherhoods below, we will, with the Court's permission, make first a separate and distinct statement of the facts and of the procedural setting in this case, which will then be followed by Mr. Lyons's argument of the law as applied to those facts.

First to the background and the physical setting which we're dealing with; Physically, we are dealing with the property of three separate railroad carriers.

First, the Florida East Coast Railway; The Florida East Coast property is located in large part to the south of the St. Johns River in Jacksonville, Florida, although, it is bounded on the north by the north bank of the St. Johns River.

The second parcel of the property we are dealing with is located to the north of the FEC property, and that property is of the Jacksonville Terminal Company.

Thirdly, the property which is directly involved here is the Moncrief Yard located again north of the Jacksonville Terminal Company.

By way of background and in highly capsule form if I may, in January, 1963, the FEC non-operating employees went on strike and began to picket the FEC property.

In May of 1966, these pickets moved up the land and across the St. Johns River and began to picket the Jacksonville Terminal Company.

Two series of litigation resulted from that picketing, both of which came before this Court.

First, the Jacksonville Terminal Company sought an injunction and was granted an injunction in Federal Court.

That injunction was reversed due to the Bar of Norris-LaGuardia by the Fifth Circuit and this Court affirmed full forward.

Secondly, the Jacksonville Terminal Company sought an injunction in the state court.

That injunction was granted and in March of last year, this Court reversed by a four- three decision.

In the meantime however, and in April, 1967, the FEC pickets again moved up the land and placed pickets around the ACL's Moncrief Yard.

Moncrief Yard, the facility which is involved in this case is a wholly-owned piece of property or a piece of property wholly owned by the ACL which is devoted primarily to classification and secondarily to the interchange of traffic with connecting carriers.

Classification as the term implies is the simple act of breaking down a road train which comes in to the yard, putting it into its separate classes and putting it in a road train which goes out of the yard, it comes in ACL and goes out ACL.

The interchange procedure, which is used by FEC and ACL in Moncrief Yard is also quite similar.

The FEC with its locomotives and employees bring cars across the St. Johns River north, across the Jacksonville Terminal Company, and drop them on a previously designated track in Moncrief Yard.

And on occasions, they pick up cars from Moncrief Yard and take them back to their own classification yard south of the river, back on the yard.

The operating procedure which exists as to Moncrief Yard as well as the relationship between ACL and FEC is, we respectfully submit, totally distinguishable from the situation which existed in the case decided by this Court in March of last year.

In the first place, the FEC owns no part of the ACL stock or no part of ACL property.

Secondly, the FEC obviously owns no part of Moncrief Yard and had no interest, ownership wise in Moncrief Yard.

The FEC exercises no discretion in either the overall management of ACL or in the management and operation of Moncrief Yard.

The ACL does not maintain or repair any FEC cars and engines, And very importantly, we submit in this case, no FEC employee reports to or leaves from work at the picketed premises Moncrief Yard.

The 1967 picketing, which is in issue here, took place at the ACL employee entrance into Moncrief Yard.

The request, which was made by picket signs, pamphlets and apparently by telephone calls during the night was for ACL employees to go to work, but refuse to perform the functions which they normally perform in that yard, namely classify and interchange cars which are the sole property of ACL.

There are at least three points which we believe should be made insofar as the picketing is concerned.

First, there's no relationship between the picketing, which took place at Moncrief Yard in the presence of FEC in that yard.

Secondly, the intent of the Brotherhood is obvious and was expressed by the highest official insofar as the strike is concerned, and that is to close the ACL because the ACL was doing business with the FEC.

Thirdly, picketing was designed to force ACL employees to quit performing work, which they normally did for the ACL.

As to the relationship between the picketing and the FEC presence in the yard, there was no relationship in time between the picketing and the FEC presence in the yard.

They picketed when the ACL employees came to work and this was not necessarily at all at the time when FEC employees or engines might be in Moncrief Yard.

There was no relationship in effect.

The effect of this picketing was to cause ACL employees to cease to handle ACL cars and in many instances, cars which were never –- or never originated or were not destined to FEC.

Separation is practical in this case.

There are more than one place at which these FEC employees could be picketed and the intent was expressed by the head Brotherhood man insofar as this strike is concerned, and I quote from the appendix at page 31, “He was going to shut down the coastline railroad.

” It was in this factual situation that the rather unique procedural complexity arose.

First in 1967, the ACL filed a complaint in Federal Court based solely on Federal law and sought a temporary restraining order.

That motion or request for a temporary restraining order was denied on the grounds of the Bar of Norris-LaGuardia.

This action lay dormant from April 26, 1967 to May 23, 1969.

Subsequently, the ACL filed suit in the state court, requesting an injunction solely under state law, that injunction was granted.

In March, 1969, this Court handed down its opinion in Trainmen versus Jacksonville Terminal and it's the chronology of subsequent events with which this Court is primarily concerned today.

First, the Brotherhood moved to dissolve the state court injunction, which had been handed down in 1967 and noticed a hearing for May 23, 1969.

Virtually, while this hearing was going on in state court, on the Brotherhood motion to dissolve the injunction, a handwritten answer was filed by the Brotherhood in the dormant Federal Case, and a copy of that answer is found in the appendix at page 163.

A second full hearing on the merits was held in State Court and Judge Lackey then issued a letter opinion which indicated that he would deny the Brotherhood's motion to dissolve the state court injunction.

It was then that the Brotherhood filed a motion in the dormant federal case in Federal Court requesting that the federal district judge in effect enjoin the state court from enforcing its injunction.

And the grounds of the motion were, and I quote from the appendix at page 186, to enjoin ACL from availing itself of the state court injunction “pending final hearing and determination of this [the federal action].

” The ACL attempted to have the federal action finally determined and in fact, immediately filed a notice of dismissal.

The ACL stated in open court that it was willing to have its complaint and its case dismissed with prejudice.

The Brotherhood objected to a dismissal with prejudice, even though they had not in their handwritten answer sought any affirmative or counter relief, and the challenged order was entered on June 19, 1969, which one; denied the ACL the right to dismiss its complaint with prejudice and two; enjoined the state court from enforcing the 1967 injunction pending final hearing, in a case in which we respectfully submit there was nothing left to finally hear.

We did however seek a final hearing and we were denied a final hearing and it is subsequent to that that we felt these appellate proceedings were commenced.

In conclusion as to the facts and the procedural setting which gave rise to this case, we would respectfully submit that the procedural vehicle of a federal district judge enjoining a state court used by the Brotherhood in this case is unique and does constitute a serious and we believe a grave threat to continued federal state judicial relationships.

The ACL sought injunctive relief in federal court in 1967, and that relief was denied because the Court was barred from acting under Norris-LaGuardia.

The Brotherhood did not and has never sought any counter or affirmative relief in that case, and the federal court did not determine and could not determine the legality of the picketing in 1967.

Subsequently, the Brotherhood contends that somehow, the district –- the Federal District Court in negatively denying the ACL's requested relief, affirmatively determined that the picketing was legal.

It was not however until after the Brotherhood had failed to prevail in state court on its motion to dissolve the state court injunction that the Brotherhood took steps to enjoin the state court to “protect” the jurisdiction of the federal court.

We respectfully submit that the intent was obvious and the effect was obvious, and that was to subvert the appellate processes of the state of Florida, avoid normal appellate procedures in the state of Florida, and to seek directly a review of a state court circuit judge decision by a federal district judge.

And it is that error legally, which with the Court's permission, Mr. Lyons will commence discussing at this time, thank you.

Chief Justice Warren E. Burger: Mr. Lyons?

Argument of Dennis G. Lyons

Mr. Dennis G. Lyons: Mr. Chief Justice, may it please the Court.

This case is quite different from the previous cases involving the attempts of the Railway Brotherhoods to involve the neutral carriers in their seven-year labor dispute with the FEC.

The basic point of difference is that this is the first case which involves an injunction granted out of the courts in one of our concurrent jurisdictions, the federal jurisdiction, against proceedings in state courts.

Now, we submit that for the Brotherhood here to prevail, for the respondents here to prevail, they must on the basic issue in this case prevail on two points.

First, they must show that this case falls within the exceptions to the anti-injunction statute.

That is Section 2283 of the Judicial Code.

Second, after bringing the case within those exceptions, they have to demonstrate that on the merits that this federal court, federal law defense that they attempt to litigate through this injunction against the state court proceedings, they further have to show that that defense is a good and valid defense.

Justice Byron R. White: And also we have to show with this injunction itself is not covered by Norris-LaGuardia?

Mr. Dennis G. Lyons: Yes, and they further have to show that that is sort of a severable point, but they also have to demonstrate that the matter started by the injunction that our side sought in the federal court being denied for that various -– very reason.

We on the other hand need only to prevail on one of the three points, which we have just mentioned.

We need only to demonstrate either that this case is not within any of the exceptions to Section 2283 or that the preemption or supersession defense that they're attempting to litigate in this fashion isn't a good one, or that Norris-LaGuardia here takes away the power of the federal court to enjoin.

Justice John M. Harlan: if you prevail or you prevail as to --

Mr. Dennis G. Lyons: Any one of those three reasons Your Honor.

We start with Section 2283 of the Judicial Code, which is the statute that takes us back virtually to the start of our Constitutional Republic.

In its earliest version, it was passed in 1793.

It has been amended at various times, but remains in the same substantial form in which it was enacted back then in the Third Congress.

It now says, “A Court of the United States may not grant an injunction to stay proceedings in a state court except as expressly authorized by act of Congress or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.

” This Court has construed that statute on a number of occasions in the century and three quarters that it's been on books.

The basic purpose of the statute, this Court has said, is to avoid needless friction between the state and the federal court systems.

The first reason obviously is comity that we have and have had since the foundation of our Constitutional Republic, two independent systems of Courts operating.

The relationship between them is a delicate matter.

The second reason is that of uniformity.

As this Court has once said, it is not only the state court judges that are capable of misinterpreting this Court's decisions.

The lower federal courts, as this Court has indicated, sometimes are in error themselves.

Recognizing that, this Court has indicated if we were to have the lower federal court sitting in judgment over whether the federal law defenses that were urged in the state courts were properly passed upon, we would have less and less uniformity.

We would have different federal judges taking different views, just as you would have different state court judges taking different views of what the federal law was.

We would be introducing added diversity and lack of uniformity rather than simplifying matters.

So it is that the 1793 legislation is in a way in the same -– deals with the same subject matter as the court's Judiciary Act of 1789, which again has been on the books and has been the basic principle of this Court's review of state court judgments.

And that is that this Court has jurisdiction to review the validity of federal law defenses that are set up in the state courts.

But then, only where the case had preceded in an orderly fashion through the state court system and where the judgment of the highest state court that is available to pass on the question has been obtained.

Back in 1955, under the present version of the anti-injunction statute, Section 2283 --

Justice Hugo L. Black: May ask you one question?

Even if the Court will not subdue with you in the above statement?

Mr. Dennis G. Lyons: No, the respondents were afforded an opportunity to submit a final judgment and I believe at the time of the hearing, they indicated that they would so that they could take an appeal from it through the state court system.

Judge Lackey, the Florida Trial Judge afforded them that right in his letter of opinion, the letter of opinion that's complained of here back on June 3, 1969 –-

Justice William J. Brennan: Could they still enter the final judgment so that there could be viewed –-

Mr. Dennis G. Lyons: Yes, they certainly could.

It's –- they have not done that and the respondents have not admittedly –-

Justice William J. Brennan: I think if they'd come to this issue, until the final judgment is issued, a temporary injunction is not itself refuted?

Mr. Dennis G. Lyons: The Florida Law I believe is a bit unclear as to that, as to whether it would be or not, but the state court here was perfectly plain that he was perfectly willing to give them an appealable order.

Chief Justice Warren E. Burger: Mr. Lyons, I was a little puzzled by your emphasis in the briefs and now, on the union's failure to get a decree or a judgment under the -- ordinarily a prevailing party takes that responsibility, don't they?

Mr. Dennis G. Lyons: Well, we were asked to come into agreement with counsel for the respondent as to the form of the judgment to be entered and the counsel for the respondent I'm sure will confirm this as indicated that he does not wish to join with us in settling the terms of a final judgment or –-

Chief Justice Warren E. Burger: And there's anything to prevent you in the meantime from sending him a copy of a proposed judgment and saying that if there's no comment within ten days, you're going to ask the Court to enter that judgment?

Mr. Dennis G. Lyons: Well, I believe we have sent him a draft.

We have never taken the other step, but he has never given us any comments on the form of the judgment.

I mean –-

Chief Justice Warren E. Burger: I'm not sure what difference it makes, except that you seem to dwell on it so much.

I –-

Mr. Dennis G. Lyons: Well, I think the fact of the matter is, Your Honor, the only point we're trying to make is that it's entirely within the respondent's power if he wants to appeal Judge Lackey's injunction.

It's within -– entirely within his power to do so, and Judge Lackey has afforded that --

Justice William J. Brennan: I think that the final judgment maybe in about [Inaudible]

Mr. Dennis G. Lyons: I believe that it could be.

In fact, I believe the respondent so requested.

There was a –- an extensive evidentiary hearing on the preliminary injunction in the –- as many facts were developed then, I believe this could be developed.

In 1955, using as it was then in effect, the present version of Section 2283, in the Richman Brothers Case this Court made it plain that litigation of the so-called labor preemption or labor supersession, federal law defense to a state court proceeding was not an exception to Section 2283 simply because your position was that the state court was moving in an area where there was preemption or supersession because of federal labor policy.

That did not give you a right to go into federal court and obtain an injunction against the state court proceedings.

The Court there said that there was no additional implicit exception to be read into Section 2283 even where the contention by the party seeking the injunction was that the state court was wholly without jurisdiction over the subject matter having invaded a field preempted by Congress and let me say that this case I believe is not even as strong a case for a federal court injunction as was Richman Brothers.

In Richman Brothers, we had a situation under the Taft-Hartly Act, the Labor Management Relations Act where this Court has held that the state courts are without jurisdiction.

Now, the principal substantive authority for their preemption or supersession defense that the respondents are urging here is this Court's decision in the Jacksonville Terminal case the last term where this Court expressly said that the state courts have jurisdiction, or that in the circumstances there presented that the application of their own state substantive law had there to yield because of preeminent federal policies.

Now, since there's no implicit exception for adjudication of the preemption or supersession defense, we turn to the text of the statute.

There are two exceptions in the statute that the respondents are citing.

The first exception is for injunctions necessary in aid of the District Court's jurisdiction.

The revisers note in the existing precedence from the pre-1948 era, and this exception at least was designed to carry forward the pre-existing law, indicate that that exception deals with two cases.

First, you have the removed case where case is removed from the state court to the federal court, and then the state court tries to go ahead with the case as if nothing had happened.

And there, the authorities indicate that in order to protect its jurisdiction, in aid of the District Court's jurisdiction it may enjoin the proceedings in the state court.

The other has to do with fund or breaking the line, what the Courts call a reese, if there's a particular fund than only one Court could take jurisdiction over, the exception is also applicable.

The decisions of this Court, Klein versus Burke Construction and Princess Lida v. Thompson back before the codification which this codification, we submit, carried forward, indicate that you may, despite that language, have parallel proceedings which seek general or personal relief in the two systems at the same time.

So here, there could be a federal court suit under federal law and the state court suit under state law.

The fact that there is a proceeding in one doesn't affront the jurisdiction of the other.

The next exception that they cite in which I think is the basis of the primary reliance by the respondents is the exception for injunctions necessary to protect or effectuate a District Court's judgments.

Now, the revisers note teaches that that was aimed to prevent re-litigation by the state courts of a dispute which had been finally litigated by a federal court.

In effect, it was designed to overrule perhaps the high water decision of this Court's construction of the anti-injunction statute, which was the 2CV New York Life case back in 1941.

The respondents have tried then to characterize this case as one where the federal court was acting in enjoining these proceedings simply to protect or effectuate its judgments.

Now, for the first time in this Court, they pointed to a whole litany of proceedings in the federal court the cases involving the government's suit against the FEC to which the carrier –- the other carriers aren't a party and the so-called Clark's Case, which came before this Court in 1966, which was a proceeding which was designed to see how far the FEC could go in changing the work rules with their own employees during the strike.

There is no order whatsoever or judgment whatsoever in any of these other proceedings that we are strangers to, which the respondent cite as being the order the district court was attempting to protect or effectuate here.

We come back to the order which is the one that they've relied on throughout, and that is the April 26, 1967 order of the federal district court, which was the order which denied the injunction to the ACL under federal law.

Now, that order says nothing whatsoever about the existence or non-existence of remedies in the state court under state law.

Indeed, if getting the injunction in the state court affronted that order of the federal court, it took the respondents quite a long time to complain of that to the federal court.

The state court order -– the federal court order was entered in April, 1967, the state court order in May, 1967.

Then two years passed and it was not until 1969 that the respondents suggested that there was something in the 1967 order of the federal court that the state court injunction contravened.

I think the explanation for this delay is simple.

What happened in 1969 was this Court's decision in the Jacksonville Terminal litigation.

What we are trying -– what the respondents are trying to litigate in the federal court doesn't have anything to do really with the meaning of the district court's 1967 order.

What they are trying to litigate is a preemption defense based upon the intervening decision in the Jacksonville Terminal Case, and that we submit puts us into the Richman Brothers situation where this Court has held that there will be no implicit exceptions to the anti-injunction statute to permit –- to permit litigants to try out the validity of preemption or supersession defenses against state law proceedings.

It's the existence of a federal law type of defense, a federal privilege or a federal immunity, if you will, that is urged as a bar to the state proceeding.

I think this is a –- in a fortiori case really from Richman Brothers if you couldn't try out through an injunction proceeding, our contention that the state courts had no jurisdiction whatsoever, it would seem to follow a fortiori from that that you couldn't try out by way of an injunction against them whether there was some sort of federal law defense.

Justice Potter Stewart: Whether they were really right -– right or wrong --

Mr. Dennis G. Lyons: Right or wrong.

Justice Potter Stewart: -- isn't that come down to that their claim is that under Jacksonville, this Court's opinion in Jacksonville, since this case was virtually indistinguishable, the state court was wrong in issuing an injunction?

Mr. Dennis G. Lyons: That was their claim, yes.

Justice Potter Stewart: And therefore, the federal district court has power to enjoin what a state court did and you say well no, you can't do that because of the statute?

Mr. Dennis G. Lyons: Yes, that's –-

Justice Potter Stewart: It's really a matter of right or wrong, isn't it, rather than supersession or preemption?

Mr. Dennis G. Lyons: I think that's -– that's simply --

Justice William J. Brennan: [Inaudible] federal court at it has on the [Inaudible]?

Mr. Dennis G. Lyons: That's correct, Your Honor.

Justice William J. Brennan: [Inaudible]

Mr. Dennis G. Lyons: That's correct.

There are a number of other reasons why the injunction here is not properly within the exception for injunctions necessary to protect or effectuate a federal court's orders.

In the first place, the real basis to us of the federal court's denial of an injunction back in 1967 to the ACL appears to be the Norris-LaGuardia Act.

Virtually, all the cases which the order cites are Norris-LaGuardia Act cases and the standard as well as legislative history of the Norris-LaGuardia Act makes it quite plain that that act was aimed solely at the federal courts and does not take away the remedies and rights in the state courts.

Chief Justice Warren E. Burger: Atlantic Coast Line Railroad Company against Brotherhood of Locomotive Engineers, and pick up where we left off last evening.o

Mr. Dennis G. Lyons: Mr. Chief Justice, may it please the Court.

Yesterday afternoon, we were to the point where we were discussing the -- what we take to be the principle contention of the respondents here and that is that the April 26, 1967 order of the Federal District Court and that was the order that denied the Atlantic Coast Line a preliminary injunction that that order was being protected or effectuated by the subsequent injunction, the 1969 injunction against enforcement of the May 1967 order of the state Court and that on that basis, they contend there is an exception here from Section 2283.

Our basic answer to that preposition is that the Federal District Court never purported to pass upon the availability of state rights or state remedies to the Atlantic Coast Line.

His decree amounted to a denial of the injunction, which was sought solely under federal law.

Their argument which was made for the first time two years later that the state injunction of May 1967 contravened the federal denial of an injunction is we submit simply a setting up of the federal law defense based on this Court’s subsequent decision in Jacksonville Terminal against the injunction in the state court proceedings.

Now, there are number of subsidiary reasons why that April 26, 1967 order could not be the basis of the claimed exception here from Section 2283.

In the first place as we read the order, there is some dispute about it, but most of the cases that it cites are Norris-LaGuardia Act cases and that it appears to us to proceed primarily on the basis of the Norris-LaGuardia Act.

We contend that the federal court order simply declined an injunction by reason of the Norris-LaGuardia Act and of course, the legislative history of that Act is clear that it leaves open the remedies under state law and in the state courts.

The respondents contend that the federal court order somehow constituted a comprehensive declaration of the party’s rights.

And in effect, I suppose held that Coastline, the neutral road had no right to injunctive relief here on any basis.

On its face, the order simply doesn’t say that.

The most you could say, if the order were a declaration of rights and we read it that way if at all we'd be to this simply a denial on the basis of the Norris-LaGuardia Act, all it denied were rights under federal law.

There is the further point that it is simply an order made upon application for at the most preliminary injunction, indeed it might have been an order simply denying a temporary restraining order.

The record is a little unclear, but giving the respondents the benefit of the doubt it's an order the denying a preliminary injunction and the laws, we submit quite black letter on the point that you cannot have a determination of the party's substantive rights through a preceding on a preliminary injunction application.

We submit then that really what the respondents are trying to do here is to adjudicate this federal law defense, call it preemption or super session or maybe perhaps simply called the insertion of a federal law defense to the state court injunction by enjoining the proceedings in the state court and this we submit is at the core of what Section 2283 says that federal courts are not to do.

Justice John M. Harlan: Well, on what reasons it must rely under the District Court give in denying your application for the --

Mr. Dennis G. Lyons: He said that since the respondents had filed the hand written answer which they did very shortly before the notice of dismissal that it was dismissible as of right and he then declined to grant the injunct -- the order for a voluntary dismissal upon motion.

And he said that since the Court was of opinion that the defendants motion for preliminary injunction, that is their counter motion seeking to enjoin the state court proceedings has merit, our motion for voluntary dismissal will be denied.

Chief Justice Warren E. Burger: What page is --?

Mr. Dennis G. Lyons: That's on page 195 of the appendix Your Honor.

In effect, he is assigned the reason that he wants to pass an injunction against the plaintiff as a reason for denying the plaintiff's motion to dismiss.

Justice Byron R. White: What was your application, the railroad's application for an injunction that was denied?

Mr. Dennis G. Lyons: Back in 1967, yes Your Honor.

Justice Byron R. White: And was the case dismissed?

Mr. Dennis G. Lyons: No, it was not.

The case simply laid dormant for two years.

Justice Byron R. White: And that is the case in which this current order has been entered?

Mr. Dennis G. Lyons: That is correct Your Honor, and that is the case that we now have before this Court.

If the contentions that we make as to the applicability of Section 2283 are not well founded, the Court must still reach the question whether the defense that the respondents have urged to the state court injunction is a good defense.

Now of course, if the Court is in agreement with us, that Section 2283 is applicable here and that none of the exception is applicable, then the Court need not reach this point.

Justice John M. Harlan: And I suppose what happens is the right to the union to review state courts, state court is still available?

Mr. Dennis G. Lyons: Yes, it certainly is, the --

Justice John M. Harlan: That's no judgments, no final judgment?

Mr. Dennis G. Lyons: That's correct.

If I might amplify a little bit on my answer to the Chief Justice yesterday, one of the basic reasons why we did not proceed to have an final judgment entered ourselves right away, was that Judge McCray's order out of the federal District Court enjoined us from proceeding further with the state court proceedings.

That injunction followed on the heels fairly closely of the statement by the state judge that he would be willing to enter a final order and --

Chief Justice Warren E. Burger: And you think that is broad enough?

Do you think that was broad enough to preclude the state court implementing its own decision by a judgment?

Mr. Dennis G. Lyons: Well, he restrained us Your Honor from taking any further action in furtherance of the rights that we have in the state court and that --

Chief Justice Warren E. Burger: Was that the court too or just you?

Mr. Dennis G. Lyons: Just us.

But the state court judge indicated to one of the parties to prepare a decree and that went under the federal court injunction, we were there shortly thereafter.

But our position is plain, the respondents are entitled to a final judgment that they could feel --

We submit that the Jacksonville Terminal case which is the respondent's principle, perhaps, sole authority for the preposition that they have a federal law defense is not applicable to the situation involved here at the Moncrief Yard, which is a yard, wholly owned by the Atlantic Coastline, a non-struck carrier.

Now, we do not intend to take the liberty of parsing for the Court's opinion rendered only one year ago, but we do call the Court's attention to the fact that there was very, very extensive discussion of the very peculiar facts involved in the Jacksonville Terminal case in that opinion.

The fact that, there we had a joint terminal facility which was jointly owned and jointly controlled by the carriers including the struck carrier and the struck carrier had a right to veto over the major decisions that might be undertaken with respect to those premises.

Those --

Justice Potter Stewart: Mr. Lyons, if we agree with your basic argument with respect to Section 2283, we don't get it all to the question of whether or not there's any difference that --

Mr. Dennis G. Lyons: That's correct, Your Honor.

Justice Potter Stewart: Truly in this case, that -- do it?

Mr. Dennis G. Lyons: You do not -- you don't have to reach this --

Justice Potter Stewart: At all.

Mr. Dennis G. Lyons: -- point of argument at this point.

Justice Potter Stewart: If we agree with you on your primary.

Mr. Dennis G. Lyons: That's correct, Your Honor.

Justice Potter Stewart: Contention.

Mr. Dennis G. Lyons: I should have belabored the point but the opinion in Jacksonville Terminal as we read it at least, it seems to us to turn on these unique factors at this jointly owned facility.

This is a facility where FEC employees report for work everyday on foot which was jointly controlled by them, which was in effect the FEC passenger terminal at the northern end, which sold tickets for the FEC, which were repaired FEC cars, which performed extensive switching and rowing services for them.

The Court discussed at some length the analogy with the common situs cases under the Taft-Hartley Act and in effect as we read the opinion, the Court concluded that in that context, the rather tangled involved context of a joint facility that the Court did not believe that it could make a judgment as to what extent the parties self help rights were properly exercisable and to what extent they were not.

The Court took the view that we submit in that area at least that that essentially had to be a legislative judgment.

Now here, we have gone beyond the exercise of self help rights against the primary parties to the dispute.

We have gone beyond the situation where the primary party, the FEC is involved in the joint use and control of a terminal facility.

What we have here is essentially hot car picketing.

At first, it did not start out that way and there are still in this Court protestations that that is not what was going on.

But particularly in the last few days of the picketing here, what you had was an attempt and a successful attempt to induce the employees of the Coastline, operating within the Coastline's own yard, not to handle cars which had originated on the FEC, and not to handle inbound cars coming down from the north that were ultimately destined to the FEC.

Now, there is some talk by the respondents that this was done in a limited way that they only refused to handle long solid blocks of cars, that they only refused to make the very next move down to the point where the interchange would take place.

But the record is plain particularly in the last few days of the picketing that the refusals by the employees went well beyond that.

That they were beyond simply involving this last move down back from the interchange point.

That in one case they declined to move a road train that was destined up to go through way cross Georgia, which is fully made up simply because it had FEC cars in it.

And in the court below in the -- before the state court I should say, the counsel for the respondents took the view that this Court's opinion in Jacksonville Terminal was to the effect that it was no longer any question of how far you can go or how far you can't go, that there was no longer any body of law available to any employer doing business with the FEC, that would in any way restrict their right to picket his business.

Now, we contend that if you read the Jacksonville Terminal case that way, what you have is picketing which I think anybody would consider secondary picketing.

That's not a magic word, but it is a word that expresses sort of judgment about what it is when people who are essentially strangers to a labor dispute have their businesses interfered with by the parties to a labor dispute.

And it is a practice which the Congress has outlawed and outlawed in increasingly stringent terms for the last 23 years, starting at 1947.

And which, the legislatures in virtually all the states and the state courts of common law have outlawed.

What the position of the respondents is as I understand is that despite that because of the fact that the Taft-Hartley Act is not as we concede not applicable here in the railroad industry that there is no agency of Government state or federal, judicial or administrative that can any way regulate or any way deal with these practices regardless of how far removed they are from directly operating upon the party that they have the dispute with.

In other words, the hot car approach, or the hot cargo approach, or the so-called hot property approach is outlawed in firstly every industry by the Taft-Hartley Act and the Landrum-Griffin Act, but not in the railroad area and what is more to say the respondents that the states cannot do anything about it either.

Chief Justice Warren E. Burger: Mr. Lyons, if the District judge relied, if at all, on the business relationships between the Florida East Coast and Atlantic Coastline?

Mr. Dennis G. Lyons: It's a -- I assume you have those before him because that transcript was available to him from the hearing two years before and he did refer two certain findings that the use of the Moncrief Yard was an integral and necessary part of the FEC's operations, which is clear if they cannot receive cars coming down from the north or if they can't, if there is a blockage of the way in which their cars go up to the north, they simply can't operate.

Chief Justice Warren E. Burger: But that reasoning would apply equally if this facility had been owned by completely independent entity with the Florida East Coast and Atlantic Coastline leasing the common facilities apparently with it, is that true?

Mr. Dennis G. Lyons: Well, I suppose that would be the case Your Honor, but of course here, we do have an independent owner, we have the ACL which is completely independent to the FEC.

Chief Justice Warren E. Burger: Well, but I mean independent of each of them, if there has been a complete independence --

Mr. Dennis G. Lyons: Yes.

Or indeed these have --

Chief Justice Warren E. Burger: The reason if the Court would have been the same?

Mr. Dennis G. Lyons: Yes or indeed I would think it you've the same result had they gone up to way cross Georgia or whatever the next junction point, or the next point where they conveniently could have blockaded the trains, getting through these other points going up to the north are similarly integral and essential to the FEC's business.

Unless it can have some way of getting its cars through the points that it is suppose to get them to, beyond its own line, it is not going to continue operate.

Your Honors, we --

Justice Byron R. White: Mr. Lyons, you would making somewhat the same argument if this case wasn't a railroad labor case, but was a under the NLRB, NLRA regime, wouldn't you?

Mr. Dennis G. Lyons: Well, we wouldn't have gone to state courts, but we would have made a similar argument --

Justice Byron R. White: Let us assume the state court purports -- reports to enjoin a union from doing something that is either arguably or actually protected or prohibited by the Labor Act and at the National Labor Relations Board has exclusive jurisdiction to deal with it and the -- but the state court nevertheless purports to deal with it by an injunction.

Mr. Dennis G. Lyons: Yes, Your Honor.

Justice Byron R. White: And I suppose you would be making the same argument that the employer or that the union may not resort to the federal court for an injunction to prohibit the state courts from doing that.

Mr. Dennis G. Lyons: I certainly would.

I'd make the Section 2283 argument.

I do not really see how I could make an argument on the merits --

Justice Byron R. White: That's right.

Mr. Dennis G. Lyons: -- in support of the state court's action because that -- that's a very clear area.

Justice Byron R. White: But the fact the state court had no jurisdiction or would -- it would be said to have no jurisdiction to deal with it, would it make any difference to your case?

Mr. Dennis G. Lyons: To the Section 2283, not at all, Your Honor.

We submit lastly that if the Jacksonville Terminal decision means what the respondents say that it means, it should be reconsidered by this Court, though, clearly we think the Court need not reach that point at all.

Our final contention takes us into an area which is relatively unchartered by this Court's decisions and that is that the Norris-LaGuardia Act here as well as Section 2283 precludes the injunction that the federal court granted.

The relationship between the non-struck carriers and the rail unions has been held by the lower courts and this Court in a four to four decision once upheld that as being a relationship arising out of a labor dispute.

And hence, in the Jacksonville Terminal case by this Court and then this case, the Moncrief case by the lower court, the non struck carriers have been held not to be entitled to have a federal court injunction.

We say that the Norris-LaGuardia Act works both ways.

If the federal courts may not pass an injunction against the unions, we submit that in this situation, they may not pass an injunction against the non struck carriers restraining them from the use of the state courts.

It is clear on the face of the Norris-LaGuardia Act that it does work both ways, that it does inhibit injunctions against management just as it inhibits injunctions against unions.

And in fact, we quote in our brief considerable dialog in the floor of Senate and the House which indicate the Congress recognized that this was a two-edged sword when it was passed back in 1932.

Indeed, some of the practices that can't be enjoined are practices that only an employer could commit i.e joining an employer organization.

So, we submit that the very broad contention that the respondents make that the Act doesn't apply at all to injunctions against management is not correct.

We also say that Section 4 (d) of the statute makes it plain that injunctions against the ordinary course of judicial proceedings were one of the evils that Congress was trying to deal with when it passed the statute.

That being so, we are confronted with the very flat prohibition in Section 7, which flatly restrains the Courts of the United States from granting any injunction or labor dispute unless certain findings were made and those findings were not made here, including findings which certainly were very relevant to the subject matter here.

Namely, there was no finding that the complainant has no adequate remedy at law, certainly his appellate rights in Florida state courts would have precluded the making of that finding.

Indeed, there was no attempt to comply of Norris-LaGuardia Act at all.

So for this reason as well, we contend that the injunction here should not have been granted against the state court proceedings and that the judgment of the Court of Appeals should be reversed.

Your Honors --

Justice John M. Harlan: They just -- there is a -- going on that?

Mr. Dennis G. Lyons: No, there is not.

The -- we do have a stay of the federal court order which is in fact --

Justice John M. Harlan: As was said by Justice Black?

Mr. Dennis G. Lyons: Yes.

Yes, Your Honor.

With the Court's permission, I'll reserve the rest of my time for rebuttal.

Chief Justice Warren E. Burger: Thank you, Mr. Lyons.

Mr. Milledge.

Argument of Allan Milledge

Mr. Allan Milledge: Mr. Chief Justice, may it please the Court.

We will demonstrate in our argument that this case, this injunction issued by Judge McCray against inconsistent state court action is not an isolated case, but it arises out of a totality of regulation of the Florida East Coast dispute that goes back to 1964 and involves every aspect of this strike including regulation of good faith bargaining, regulation of the self help rights of the railroad, regulation of the self help rights of the unions, the actual operations of the railroad itself, and that all of these are interrelated and all bear upon each other.

Justice Byron R. White: You mean that, you'd have some problem with the state court enjoining a violent picketing?

Mr. Allan Milledge: Not violent picketing, but --

Justice Byron R. White: Well, then the federal court didn't take over the entire controversy?

Mr. Allan Milledge: With that exception.

With the -- that exception --

Justice Byron R. White: Why not the exception for secondary activity?

Mr. Allan Milledge: Because this Court has held in the Jacksonville Terminal company case that that is not only preempted or that a state law may not apply in that field --

Justice Byron R. White: Well, it is not preempted of the -- it is not preempted to the --

Mr. Allan Milledge: Of jurisdiction --

Justice Byron R. White: -- of the federal court either.

What can the federal court do about it?

Mr. Allan Milledge: Well, it is -- as we interpret the opinion, it is protected conduct to engage in whatever reasonable conduct that the organizations --

Justice Byron R. White: So, what jurisdiction does a federal court have about that --?

Mr. Allan Milledge: Well, the railway --

Justice Byron R. White: Federal court is preempted too, isn't it?

Mr. Allan Milledge: In the opinion, there's the area of course of damages which would be an area that the federal court could deal with.

But in the opinion of this Court of the last term is, as we read it, that there is no limitation upon the self help rights so long as they are reasonable and that is a matter that has been of before the District Courts, a number of times and I think I can develop also the interrelationship.

The second thing that we will demonstrate is that the power of the District Court to enjoin the state court action here under 2283 in this Court's opinions is beyond question that it has that power.

Chief Justice Warren E. Burger: Do you agree with Mr. Lyons that Norris-Laguardia is a two-way street, --

Mr. Allan Milledge: Well, --

Chief Justice Warren E. Burger: -- in its prohibitions?

Mr. Allan Milledge: We think that with the two -- really, there is only one provision in the Norris-LaGuardia Act that applies to management and that is the one he sited about employer organizations.

But, we think our basic position on that is that the tail will go with the hide, that once the 2283 problem is dealt with, the Norris-LaGuardia Act problem -- the Norris-LaGuardia Act just basically is not designed for this type of a problem and will develop that later, but our position is not that the Norris-LaGuardia Act can not apply to an employer.

Now, the third position that we will develop is that this case is the strongest case for the application that is the should aspects.

We will demonstrate that there is the power of the District Court to do this, but this is the strongest case for the application of an injunction against a state court that has ever come before this Court or a lower court in a reported opinion and it is a stronger case for the granting of such injunction than any reported case granting one.

In connection with the totality of regulation of -- by the federal court, there are four separate cases, cases that is with separate file numbers, that the jurisdiction of which, is aided by this injunction and orders are need to protection of this injunction.

Now, the types of matters which have been before the court below are absolutely legend.

This Court recalls the clerk's case that was before this Court, that was a case brought by the United States Government.

It is a case in which it was determined that the Florida East Coast railroad for the first two years of its operations, its post strike operation was operating in violation of the Railway Labor Act.

There was an order entered in that case requiring good faith bargaining.

There was an order in that case granting to the railroad certain limited exceptions or deviations from its collective bargaining contracts in aid of its self-help rights.

That case still pends that there is a trial commencing our final, another final hearing in that case commencing the first week of April to go on for all of April and all of May and the issues are again, the good faith bargaining that is all in contempt citations, the good faith bargaining, massive violations of the injunction since the strike, and on other issues.

All of that still pends and the good faith order, the good faith order depends on economic sanctions.

As Justice -- Mr. Justice Brennan has written in the Insurance Agents case, and has written in other cases too, and it is in the Galveston Wharves case the decision of the Fifth Circuit in the same area of 2282, that bargaining, the motive power in bargaining is economic sanctions.

Now in this case, that is the Florida East Coast strike, there are as there are in all railroad or other situations two types of economic sanction.

One is the withdrawal of your people at the commencement of the strike and the second type is picketing aimed at those persons, the employees or persons making pick ups and deliveries to the struck employer.

Its -- in other industries, it's more general than that, but in the railroad industry, the place where you put the pressure on is where the railroad gets its freight from another railroad.

Now, from the commencement of this strike up until the present, there has not with the exception of a few hours in 1966 and a few hours in 1967 any use of the economic sanction to stop pick ups and deliveries from other railroads by asking the employees of other railroads not to do so.

That has been prevented by an injunction initially issued by the United States District Court for the middle district to Florida and that is another case in which in that case still pends.

Now Mr. Lyons in his brief has talked about that case.

That's a case in which the United States District Court has assumed jurisdiction over interchange and the organizations, labor organizations were never allowed to get into that case, and as they say, it mandates interchange.

Now, what is happened since that time is, there was a lawsuit filled in 1965 by the organizations to construe that injunction as not to apply to employees who had -- of the connecting carriers.

Then in 1966, the Trainmen strike against -- the Trainmen picketing of the terminal area began and effectively, there was a construction of that assumed jurisdiction over interchange to initially not permit picketing of the terminal company and ultimately to permit picketing of the terminal company.

And then in 1967, in this case with the different file number nonetheless, the Court has again, but with a different file number assumed jurisdiction to determine whether or not we and I say in this case we, it is the Brotherhood of Locomotive Engineers, can picket the Moncrief Yard.

All of these cases are all interrelated and they all have impact back and forth on each other.

Justice John M. Harlan: Can I ask you a question?

Supposing the Judge McCray allowed dismissal of Atlantic Coastline to or supposing that particular suit would not been petitioners [Inaudible].

Would you go in to the state court or to the federal courts to bring an original action bypass the state judge and appellate court procedures out of the view here rather --

Mr. Allan Milledge: If there were -- if there was no jurisdiction that had been assumed by the United States District Court or no orders that needed to be protected or effectuated, I would say that we could not.

Now, the difference --

Justice William J. Brennan: [Inaudible] any of these other pending suits?

Mr. Allan Milledge: I think that we could.

I think that we could have gone into the Government's case, the good faith bargaining nexus is exactly the same there as it is in the Galveston Wharves case, which we will discuss after a bit.

We could have gone in if permitted into the case in which there was already assumed jurisdiction.

The -- what's called the 6316 case or the initial case assuming jurisdiction over interchange.

Once in as we come later as I'll get into as quickly as I can into the 2283 question, once there is federal jurisdiction to determine the controversy, wherein far enough so that an injunction maybe issued.

Now in a case like that, you probably wouldn't get into the area of should it be issued.

This case makes as we'll show later an overwhelming posture for the “should aspect” of it, but what the statute says on the could or the power is simply a case in which it is necessary to a jurisdiction or a case in which an order needs protecting or effectuating, that's what the Congress say.

Justice William J. Brennan: This petitioner is not, however, a party in any of these actions that you're talking about, is it?

Mr. Allan Milledge: Petitioner is a party to all of the interchange actions.

Justice William J. Brennan: And Atlantic Coastline --

Mr. Allan Milledge: Atlantic Coastline railroad is --

Justice William J. Brennan: Is it the only one or --?

Mr. Allan Milledge: No.

All the railroads are --

Justice William J. Brennan: All are.

Mr. Allan Milledge: -- to the initial case upon which the federal court assumed and mandated interchange.

All of the carriers are, possibly Southern is not, but Atlantic Coastline, the Seaboard, of course it is all one railroad now, and the Jacksonville Terminal are all parties to that and the Southern was too, I recall that Southern --

Justice William J. Brennan: Is that a litigation that involves this labor dispute with FEC?

Mr. Allan Milledge: It was -- it is and that's the petition that is the complaint was filed in that case on January 27, four days after the strike commenced by the FEC against these other carriers saying that, they -- the other carriers were refusing interchange that they had imposed an embargo and indeed they had imposed an embargo and the labor organizations were not parties, but the justification given by the defendant railroads, that is the other railroads, was -- if there was a labor dispute and that these people, that is our people would picket the interchange and so they want --

Justice William J. Brennan: Now, you've probably already said it, but will you repeat for me again?

How was it that we could get into that as I understand your argument that there is a judgment which in that case which will entitle the union now, the relief in that action of the kind you got here against the state court suit, how does that come about?

Mr. Allan Milledge: Alright.

That, the injunction in that case applies to the Atlantic Coastline and its employees, the terminal company and its employees.

Now, that is an injunction -- the jurisdiction of the Court is over the question of interchange and it applies to employees as well.

Justice William J. Brennan: But how are you going to get into that suit, that is what I am interested in?

Mr. Allan Milledge: We would be by intervention but the question is a question simply of how does 2283 read. For instance, in the Capital Service case --

Justice William J. Brennan: Well, I appreciate, but you answered Mr. Justice Harlan and if there -- if this present proceeding hadn't been brought at all the federal court that nevertheless you would be able to get in as I understood you would say?

Mr. Allan Milledge: Yes.

Justice William J. Brennan: Under this interchange case.

Mr. Allan Milledge: Well, the way --

Justice William J. Brennan: In a way which would entitle you to have the same relief that you could actually got in this case.

Is that your argument?

Mr. Allan Milledge: Yes.

Now, the way we actually went about it, the way we went about it was in 1965, we filed another case to construe -- we sought intervention and we are denied and Judge Tuttle discusses that in the case, one of the Jacksonville Terminal company cases.

So, then we filed a suit to construe it.

Justice William J. Brennan: Where did you bring that one?

Mr. Allan Milledge: Before the same judge in the same Court.

Now, that one didn't reach any file determination because in the mean time in 1966, the Trainmen went on strike and began to picket the terminal which was nominally in violation of the injunction and the same judge, Judge McCray and enjoined it initially and then later reversed -- his injunction was reversed by the Fifth Circuit.

So, that for -- as a practical matter that that original case, 6316, the original embargo injunction case has been modified by the 1966 case and by the 1967 case, this case is presently before the Court.

All of which deal with these really the same problems, the interchange between the connecting carriers and this railroad.

Justice William J. Brennan: Well, basically then your argument is it -- I'll let the – you -- to the 2283 problem is that this interchange action has a judgment, which this present proceeding protects or effectuates, is that it?

Mr. Allan Milledge: No.

Our basic answer is that Judge McCray has -- as he says, “Determined the rights of the parties.”

In this order on appeal, he says, “I delineated the rights of the parties.

I did make a substantive determination between the parties.”

Now assume that, he was wrong about that, that he really hadn't done that, that Mr. Lyons is somehow right that all his order was was an Norris-LaGuardia order.

Certainly, he has assumed jurisdiction to do that.

He's had jurisdiction to do --

Justice William J. Brennan: I know, but what -- to protect or effectuate, what judgment?

Mr. Allan Milledge: Well, the language of the statute does not require that there be a judgment to be construed, to be protected or effectuated.

The language of the statute is -- were necessary in aid of its jurisdiction.

For instance, --

Justice William J. Brennan: Oh, I see.

Is that the one you're relaying on?

Mr. Allan Milledge: We -- there -- we rely on both of them because they are both in point.

What I was saying is that even if his 1967 order wasn't an order that required protection in first place, well, even if it was and we say it was because he says it was.

Even if it wasn't, he certainly had assumed jurisdiction to determine the legality of this conduct.

So, he certainly has the jurisdiction.

Now, we've heard over here that everything was done, everything was done in this litigation to entitle them to a final judgment.

I forget the exact terms, but you recall what Mr. Lyons says, talked about it and says Mr. Friedman that after this injunction against the state court proceeding was entered that they asked Judge Scott, the other district judge, to either set it aside or to give them a final judgment because everything that had been done, all the facts were in and all he had to do is just enter a file of order.

I mean that's true, I mean, that's where the case is.

It is a question of either our conduct is legal or illegal, Judge McCray says his ruled that its legal conduct and when he made that ruling back in 1967 and this is along the line that there is a judgment to protect or effectuate.

He -- this Court had not yet ruled in Jacksonville Terminal, but you will see in his opinion or order that he cites Section 20 of the Clayton Act.

Now, this Court has heard about Section 20 of the Clayton Act from us since 1966 that Section 20 of the Clayton Act as discussed by the Hutcheson case in Norris-LaGuardia breathing life back in the Clayton, it's been our position on legality from the beginning.

And that's what Judge McCray said in his order in 1967 and that was before the order of this Court to be sure, but that is what his determination was.

He determined that Norris-LaGuardia applied, but he went much further than that.

He also in terms of this order being an order which is necessary to protect or effectuate, he cites -- defines that we were engaged in a major dispute and he cites the B&O case, which is a standard fairly recent then, casing that once you had exhausted the procedures of the Railway Labor Act, once there was a major dispute, then you are entitled to self help.

You had a legal right to self help.

Now, the content of self help is something else, but it's -- we -- it is certainly been said often enough by this Court that -- that self help implies as it does -- as it must, since there is the duty to bargain in the Act, it must imply primary strikes and primary picketing.

Now, he cited the B&O case, this is a major dispute, he talks about what we did.

Now, I haven't got into the facts and I may never have a chance to get very far into the facts, but we've heard over and over again and this Court has heard over and over again, this great tale of horror.

The world is going to come to an end.

Now, since 1963, one road train has been 32 minutes late and the yard in this case was 15 hours late.

But that's all that's ever happened and all that has ever happened is that the -- in the exact place where the Florida East Coast railroad ends, and I am not talking about ownership, I'm talking about where its railroad trains run?

In this case, they run into the Atlantic Coastline property where they complete their business.

They make a delivery and they make pick ups in the employees of the neutral.

The Atlantic Coastline, are people that under any idea of primary picketing, we are entitled to ask, “Don't pick up and do not make deliveries to the primary.”

Now, this happens to be a case.

This Moncrief Yard picketing in which every effort was made to limit the manner of picketing so that it would have the effect only on pick ups and deliveries.

Now, we didn't even use a picket line.

If we put a picket line up at the one and only entrance, the only place that employees of Atlantic Coastline go to work in the Moncrief Yard is at this one employee entrance.

If we put a picket line there, those employees whose duty it is to make pick ups and deliveries to the FEC within that yard, where the FEC engines come, no other place to reach those people, if we will put a picket line there, that closes the yard down.

Now, there is this assertion over here made that that's really what we had in mind doing that we just want to close the yard down.

And what we did, I might say was we let the people go to work, we just asked them simple thing, “Don't handle the interchange” and that is what they did.

Now, that relates back because that's what Judge McCray found in his order, now, I'll show you that in just a moment.

But --

Chief Justice Warren E. Burger: Does that go to any issue other than the character of the picketing --

Mr. Allan Milledge: It really -- no, it is really doesn't.

This conduct here in question, however, is more primary than the conduct in the Jacksonville Terminal Company case, that's about all it really does go to.

We are not some villains that are out to close down the world or close down the railroad or anything else.

We do want to apply the economic power, the economic sanctions to the place where the railroad gets its traffic.

Now, just to go because there was this business about we want to close the yard down or something that's what they say over and over in the brief.

They quote a man named Jeanneth who is quoting a man named Sims, Jeanneth is their overall man and Sims is our overall man.

Now of course, Mr. Sims testified and as Judge McCray found all we were doing was stopping the interchange movements.

But Mr. Jeanneth in cross-examination said, my question to him was and you had some conversations I believe, I am reading from page 109 of the appendix, and you had some conversations I believe with other different union people or at least, they were there like Mr. Sims answered.

I talk to you and to Mr. Sims question, “You understood did you not that the purpose of this activity was only to stop FEC traffic?”

And sir, “That was my understanding.

Yes sir.”

That's the man there quoting earlier for that, we were going to close the world down.

Now, in connection -- well I just might, since I got started on it, just tell you that Judge McCray's order, the order of 1967, paragraph number six which is on page 66 of the appendix, finds if that is what we were doing.

That we were asking people not to make pick ups and not to make deliveries and that was that.

Now --

Justice John M. Harlan: How many cases did you get when you filed case [Inaudible] Court --?

How many cases that you have been able to find where there's 2283 power has been exercised --?

Mr. Allan Milledge: Alright.

The Galveston case in the Fifth Circuit which certiorari was denied by this Court this past term, the picketing very similar to this on the grounds the state enjoined to the secondary and the nexus was a good faith bargain order.

There is that case, there is the Capital Service case. Capital Service is a case which came before Richman Brothers.

And in Capital Service, the board had invoked the jurisdiction of the District Court, hadn't entered any orders at all, but had invoked it, invoked the jurisdiction for the purpose of entering some orders pertaining to alleged secondary conduct.

And this Court held that that was proper under 2283 then the injunction against the state court was proper to unfetter the federal Court so that it could make a determination.

There is that case, there's -- I have a list, if I can pick them up quickly.

Justice John M. Harlan: Are they connected in brief?

Mr. Allan Milledge: Yes.

The Looney case is the case that this one -- this case is most similar to.

It's very similar -- this case is very similar to really three cases.

It's very similar to Galveston Wharves.

It's very similar to Capital Service because the difference there, the Board invoked the jurisdiction as only the board can under that Act.

Here, it is private parties who may invoke the jurisdiction of the Court.

But the Looney case is case that goes back quite a number of years, but the Looney case is a case in which this Court approved an injunction against the state court case -- state court injunction in a Texas rate dispute that is the way I think of it in any event.

And that case, the Looney case is discussed, it is quite significant because it is like Capital Service in that an injunction was issued, it was in aid of jurisdiction but of the Court rather than to protect or effectuate a judgment.

But the Looney case is of particular significance because it is discussed at length in the Toucey decision.

The Justice Frankfurter opinion for the Court, and Justice Reed's opinion for the minority, and in both the majority and the minority, the same conclusion is reached about Looney.

Justice Frankfurter in that case said that, that case was granted merely to protect its jurisdiction until the suit brought by the carriers was finally settled.

Now the significance of that is this.

2283, Mr. Lyons has suggested to us that 2283 has a lot of pigeon holes and this does not fit a pigeon hole.

The pigeon hole for a race, there is a pigeon whole for a removed case, there is a pigeon hole for fully adjudicated case and that is all he said, the pigeon holes were in his main brief.

Now, a lot of cases don't happen to fit in those pigeon holes, but 2283 isn't a pigeon whole statute.

The history of 2283 is that, it initially was a flat blanket statement by the Congress, “the District Court shall not enjoin state courts” and then eventually the bankruptcy addition came into it.

And then finally in 1948, it was changed because of Toucey, but what had this court done in the mean time?

This Court had said that obviously, there are situations in which it is necessary that having jurisdiction, a District Court has got general equity jurisdiction in it has got to be able to protect that jurisdiction.

And so, various cases came along and Looney was one of them that where it was necessary to protect the jurisdiction.

Now, Justice Frankfurter in 1941 in the Toucey case said that, the policy against enjoining state courts was so great that even a fully litigated case that was a money judgment diversity case, but the policy of the United States against enjoining state courts was great enough to require somebody who would fully litigated the matter in the federal courts to go ahead and just plead res judicata and go on all the way up again through the state system and back around.

Now, that was reversed by Congress and they -- so, you no longer, you have an entirely different statutory format starting in 1948.

It isn't a question anymore of the Court having to look to its some general equity considerations, but the Congress has said and the reviser says the same thing and they do not limit it to pigeon holes, but particularly the language of Congress, a District Court may enjoin where necessary in aid of jurisdiction or to protect and effectuate judgments.

You have both here and really the question is the question of the should aspect.

Justice Potter Stewart: You don't suggest, do you that this 1967 judgment was res judicata on the railroad, do you, insofar as precluding it from going into the state Court, under the state court --

Mr. Allan Milledge: No.

What our position is with regard to the state court matter is that whatever that Court does or does not do, right, wrong or indifferent that that impinges upon the jurisdiction of the federal court which was assumed to make those determinations.

Justice Byron R. White: Why -- Why --

Mr. Allan Milledge: We also say that it did happen.

Justice Byron R. White: Why does it if is acting under state law?

Mr. Allan Milledge: Well, we now know --

Justice Byron R. White: The federal Court -- was the federal court dealing on a state law problem?

Mr. Allan Milledge: Well, the federal court could deal with the state law problem.

Justice Byron R. White: Well, it didn't purport to be?

Mr. Allan Milledge: Well, if (f) under ASCO decision of this Court, what you plead is a set of operative facts?

You do not plead all this business that comes from the other side of the table about the federal court couldn't deal with the state court with state law.

Justice Byron R. White: Was there diversity in this case?

Mr. Allan Milledge: No, I am not quite sure.

Justice Byron R. White: Well, what jurisdiction would this federal court have had to deal with the state law of question?

Mr. Allan Milledge: Well, there is no longer a state law question but I would assert base upon last year's determination of this Court.

But at that time, if the Court had jurisdiction as it did under the Railway Labor Act and under the Interstate Commerce Act, it could use whatever body of law that there was that was applicable under pendent jurisdiction or ancillary jurisdiction.

District Courts of the United States everyday apply state law and it is usually in diversity cases, but they also apply state law in pendent jurisdiction cases where in this case it would be the Railway Labor Act.

Justice Byron R. White: What you are saying is that in 1967, the District Court in effect declared that this is protected conduct to free from interference by any Court under the federal law?

Mr. Allan Milledge: That is what we say he did.

Justice Byron R. White: What?

Mr. Allan Milledge: Correct, yes.

Justice Byron R. White: And you're saying that the railroad going into the state court is maybe enjoined because of its acting contrary to the -- at least the declaratory judgment that was entered against it?

Mr. Allan Milledge: Yes.

Defendants can win, I mean, the position that Mr. Lyons is “If you don't rule for the plaintiff and don't grant an injunction, then nothing has happened.”

Defendants can never have the benefit of this doctrine or benefit of protection if it had been -- let us say a fully litigated case with res judicata, I suppose that would be something different, but that somehow if the defendant gets rules for that that isn't an order requiring some kind of protection.

Well, he did rule the question of the legality, the issue of legality of our conduct was submitted to Judge McCray in 1967, about that, there can be no question.

Now, there was a question up until this past year as to whether or not there might be some independent state remedy as it was thought that could intrude into railway labor.

Now as long as that was the case, and there the suggestion is made, well, if it required protection -- If it is what you say it is, why didn't you go in 1967?

Well, you're into the area then of the question of really a should preposition.

Until this Court has ruled and incidentally the arrangement was with counsel that we would let the 1967 picketing cases lie until this Court had ruled and when this Court had ruled within about two weeks we were in before Judge Locke.

So, why the reason for not going in, in 1967 is that a Federal District Court with that question remaining as an open question would be reluctant to enjoin not because it couldn't, not because it didn't interfere but because that just would not -- you never get somebody to do it is really what's involved, but once its clear that that interferes it's not a question of trying a res judicata defense, it's not a question of under the statute, it is not question of any of those things.

It's simply a question that the state court action fetters the federal court in making its determination or it is contrary or in some -- it does not really even need to be contrary as long as it's necessary to some reason or to be necessary for the court to take action and here, that is really very clear.

Now, it is said by Mr. Lyons that Richman Brothers ends the matter and that Richman Brothers says that there is a forbidden fruit here that you can't try a preemption court -- a defense in the Federal District Court, that you got to let that go on up.

Well, that isn't what Richman Brothers says.

In Richman Brothers, there was no jurisdiction of the United States District Court.

That jurisdiction had been preempted by the National Labor Relations Act.

Justice Potter Stewart: There was no jurisdiction in either state court order or federal court?

Mr. Allan Milledge: No.

There is no jurisdiction anywhere around.

So, there was no jurisdiction to aid and no order should have been entered.

So, 2283 could not apply.

It really is just about as simple as that.

Now, the language --

Justice Potter Stewart: [Voice Overlap] the opinion of the Court has been written quite that simply?

Mr. Allan Milledge: No.

The opinion of the Court in “the should” area is Justice Frankfurter again writing the author of Toucey and he writes a lots of reasons why it shouldn't be done.

But fundamentally, it all does come back down to the question of there was no jurisdiction to aid or a judgment or order to be protected.

Now, Professor Moore has something to say about this.

Professor Moore says the -- and this is on page 43 of our brief, “The second exception permits a federal court to grant an injunction against state proceedings where necessary in aid of its jurisdiction.”

This puts back into 2283 some of the judicial flexibility which Toucey had removed from the statute.

And despite the strict reading of 2283 by Richman Brothers, flexibility still remains for Richmond as we shall see held only that the District Court had no jurisdiction to aid. But if on the other hand a federal court has jurisdiction, then under the terms of 2283, it may enjoin state court proceedings where necessary in aid of its jurisdiction.

Now, since that time there has been the Galveston Wharves decision of the Fifth Circuit.

It's possible that it is very round decision is since that time as well which -- but perhaps not.

The Galveston Wharves decision was a case like the FEC in this regard that it had been to the Fifth Circuit Court of Appeals three times.

It is -- it was a case that had spawned considerable litigation.

The state court had enjoined picketing, the federal court had mandated that the carrier engage in good faith bargaining.

The federal court enjoined the state court from enjoining the picketing because of the impact that that would have regardless of considerations of secondary conduct and Galveston again was a decision before this Court's decision in Jacksonville Terminal and that case is essentially in terms of the power under 2283, essentially the same case as this one.

The Sperry Rand case is a Court of Appeals case in that case an injunction was issued against the state court to protect a discovery order of the federal court.

In the Brown versus Pacific Mutual case, which is a case which goes back prior to the 1948 Amendments, Justice Parker issued an injunction against a state court or rather he affirmed an injunction against a state court in a case which only involved cancellation of an insurance policy.

The suit in the federal court was for cancellation, the suit in the state court was on a $450.00 claim arising under the policy and he discusses at great length and this is back when there were no exceptions to 2283.

He discusses the Kline case which is a case Kline, and Toucey, and Richmond are really the cases most often talked about, but when you come through all of it and that injunction was sustained, but it never reached this Court, but when you come down really to all of it, certainly the Looney case is still the law.

The Looney case does not fit into any body's pigeon hole.

The Looney case is simply a case in aid of jurisdiction.

This is what the respondents say about Looney and the Sperry Rand case.

What they teach is that an interlocutory order of a federal court is as much entitle to protection by injunction against interference from a state court as a final order.

That's certainly true under Looney.

Looney -- the principles of Looney were certainly carried forward and probably broadened in the, but at least carried forward in the 48 revision, and that is certainly within the language of 2283.

Now, the reason that this case is the strongest case that of any case for the application of 2283 is this.

There are at least 0 or 40 separate cases the District Court has had, innumerable cases involving this.

The Fifth Circuit has had opinions that, I don't think you can number on two hands.

All of these matters ultimately come down to one thing that the Florida East Coast strike will be settled only if there is bargaining, when you finally come down to it.

Now, there has been no economic power, no economic sanction that could be put to bear upon the Florida East Coast Railroad since the first two years of the strike, except the economic sanction of asking the employees of the neutral railroads not deliver cars to the FEC.

Now in a situation like this and what, the reason really I think that the economic sanctions initially didn't bring any kind of settlement, was because the FEC immediately started all these illegal operations for which there is a proceedings now about restoration of the status quo and so forth, but they effectively through illegal conduct wanted that, that is not the fault of the Atlantic Coastline.

But also from the very beginning, the other form of primary activity and surely there must some way in the railroad industry that you are entitled to ask the people who make pick ups and deliveries in the terms of the Steelworker case or in the terms of this Court last year not to do that and of course, one knows that in this industry that they won't do it if you ask them not to.

So, there is an economic power that has never been used.

That is what is involved in this case and this Court has decided that state courts have no business in this field.

That interferes with not only the federal scheme, but that interferes and with jurisdiction assumed over the bargaining, over the self help rights of the railroad and over the question not only of interchange between the carriers, but interchange as it affects the rights of this people and it is all one ball of wax.

But if for instance, let us assumed that a state court tells the federal court that the railroad cannot deviate one iota from its contract and we know that Judge Simpson who is originally the District Judge following the mandate of this Court, allowed the railroad to get away in its operations from certain matters, I forget exactly what they were to long, but some matters of its collective bargaining agreement.

Now, there wouldn't be any hesitation, I dare say, that that injunction by a state court would come within 2283 and be stopped.

And this is simply the other side of the coin and the only reason it looks any different in perspective is because the order says, “Okay, do it.”

Or at least, “I'm not going to give relief against it” and so you can say, well that isn't some kind of an affirmative duty, but it bears on it -- the Court assumed jurisdiction over the legality of this conduct and as a state court order that impinges upon that and it isn't tangential at all, it's the heart of the whole business and no bargaining will ever make any sense until the day that there is some economic power on the part of the organizations.

I mean, the basic dispute still pends it's over 10 cents an hour.

A demand made in 1961 and for 10 cents an hour the hold up strike can be settled for 10 cents an hours in an economy that from 1961 to 1969 has expanded 25 -- on inflation 25%.

I mean, so something is wrong in this strike and it is that this traditional weapon of labor, primary picketing against people who make deliveries and pick ups has never been able to be applied.

Justice Byron R. White: Did I understand you sometime back and say that after 1967 injunction suit by the railroad in the Federal District Court that you might have some problems here if you had to start a new suit to enjoin a --

Mr. Allan Milledge: Well, I think that in the totality of this situation that with the perspective in the first place.

The perspective of the statute is not litigant's contentions or anything else.

The perspective of the statute is the power of the Court and it's whether the power of the Court depends on whether it is assumed jurisdiction and it has assumed jurisdiction over the bargaining orders which --

Justice Byron R. White: Wouldn't you have some problem with Richman Brothers at least, if there had not been any suit in the Federal District Court at all and that the employer went right to the state court got an injunction and then you started action in the federal court?

Mr. Justice Harlan asked you awhile ago I think about that.

Mr. Allan Milledge: Well --

Justice Byron R. White: I thought you answer was you might have the answer to the problems with that?

Mr. Allan Milledge: Well, the Capital Service case, this case, if that were so if there was no prior litigation at all, I believe that is your assumption of no litigation at all, you would then have a situation which is like the Capital Service case.

The difference would be in Capital Service, it is the Board that invokes the jurisdiction of the court and then in the Capital Service, the Court unfettered itself first.

Under the Railway Labor Act, it is private litigants who invoked the jurisdiction of the Court to make a determination under the Railway Labor Act.

And if Capital Service is analogized to the Railway Labor Act, then an initial proceeding brought by a private litigant to have the federal court determine a question of Railway Labor Act law would be entitled, once the Court had assumed jurisdiction to do that would be within 2283.

Now, that doesn't make a stronger case for the “should aspect” as we have in this case because of the totality of all of the different factors.

Now, it has been said several times all we need to do is just go ahead and follow our appellate remedies and it is true the appellate remedies are there and we can take an appeal and we'll get back around here.

Justice William J. Brennan: You agree if you get a final judgment?

Mr. Allan Milledge: Oh, yes we can.

Well, if Judge Locke would do what he said he would his letter and enter a final judgment, we could appeal from that, that's quite true.

That is true in every 2283 case and that doesn't affect the policy of 2283, and that is a singularly inappropriate way to deal with a labor dispute.

If a federal court has taken jurisdiction and had orders, then we'll be back here two years from now so that this Court can say that Jacksonville Terminal, when it says that state law can apply, means act, and then when some state judge wants to take jurisdiction over something again, well, we'd be back in another two years after that and so forth and so on.

Now, the federal interest in the settlement of the Florida East Coast strike is enormous.

The Federal Government has been in the case since the beginning not the one with this case number on it.

It does affect whole regions and to have that procedure and that's really what the decision I think that this Court comes down to, really the question that is, is this the type of a case, like a money judgment case in a -- it's already been determined that Toucey was wrong that fully litigated diversity, but personal money judgment case that you could and should enjoin a state court.

Congress said that, Congress was upset to think that you couldn't do that.

Mr. Allan Milledge: But this case if that's so, then this case is just overwhelming for that in -- I didn't discuss the Norris-LaGuardia Act at all, but our position is stated in the brief.

Chief Justice Warren E. Burger: Thank you, Mr. Milledge.

Mr. Lyons, you have about five minutes left.

Rebuttal of Dennis G. Lyons

Mr. Dennis G. Lyons: Mr. Chief Justice, may it please the Court.

Mr. Milledge referred to a number of other proceedings besides the case at Bar which presumably the District Court was protecting orders in -- by enjoining the state court proceedings here.

Now, the District Court itself never cited any of these other cases.

I don't believe they were cited to it by counsel.

They were mentioned for the first time in this Court.

There are three proceedings essentially, one of them is the so called the Clerks case to which the neutral carriers are not even a party.

The other is a proceeding in which there's never been any order entered of any affirmative or even negative sort it and the only other one is this 1963 case and the only order that has ever been entered in that and we discuss all of these in our brief.

The only order that has ever been entered in that is an order that the FEC got against the Atlantic Coastline and the other neutral carriers requiring them to interchange and we scarcely see how the state court order in any way contravenes that order since the picketing that the state court sought to enjoin was designed to disrupt the interchange by getting the Coastline stop the interchange.

This case is quite different than from the Looney case which was mentioned frequently by counsel in his oral argument.

In Looney, there was an affirmative interlocutory injunction granted by the federal court.

Then a state court ordered the taking of certain action which was inconsistent, completely inconsistent with the federal court injunction and it was held that the federal court could enjoin proceedings upon that state court injunction notwithstanding that the federal court injunction was interlocutory.

This is an entirely different case.

There is no order whatsoever that the injunction under review protects or effectuates the assertions of the federal court's jurisdiction in this case, have been solely assertions as to the federal law rights.

There is no diversity, the state law claims were never pleaded.

We get down to the final point in this case that what the respondents are trying to do here is to adjudicate this defense based on their reading of the Jacksonville Terminal case by way of brining an injunction against the state court proceedings.

Now, they have stated that the argument we're making is essentially a pigeon whole argument that they have to point to a specific exception to the statute.

Well that is the way the statute reads, pigeon whole is a kind of a tendentious way of saying it but it's a general statute with specific exceptions.

As the Court said in Richman Brothers, legislative policy is here expressed in Section 2283, in a clear cut prohibition qualified only by specifically defined exceptions.

The exception I think that the respondents are trying to urge on this Court is the exception that we heard much of the very end of Mr. Milledge's argument and that is that they just can't wait for the orderly adjudication of their federal defenses in the state courts.

They have not joined with us in entering a final judgment.

They admit that they could have had one entered.

They have left that situation stand now for nine months.

They have not lifted a finger to take an appeal in the state courts.

The preposition we submit that the respondents are urging upon this Court cuts at the very heart of what Congress tried to do back in 1793 and ever since when it is enacted and reenacted this statute.

Justice Byron R. White: Mr. Lyons, let me ask you, if this -- if in 1967, the federal court had said expressly or in effect that this issue before me is governed exclusively by federal law and if the railroad has no right to an injunction under federal law.

Now and then, the railroad promptly resorted to state courts and asked the state court to adjudicate the controversy under state law and asked for an injunction under the state law.

Mr. Dennis G. Lyons: If he had purported to -- had purported to exercise the power adjudicate state law claims or deny their existence, then --

Justice Byron R. White: Well, we can say federal law preempts at all --

Mr. Dennis G. Lyons: -- and it's exclusive, then we would have quite a different case.

You could make the argument that what we were trying to do then was to re-litigate that order and that we should have appealed that order.

Now, we didn't appeal his order and if it said something else from what it had said, presumably our decision as to appeal would have been quite different.